In re P.W.
Filed 12/31/12 In
re P.W. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
In re P.W., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and Respondent,
v.
SAMANTHA W.,
Defendant and Appellant.
G047076
(Super. Ct. No. DP-022217)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art VI,
§ 21.) Affirmed.
Pamela
Rae Tripp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy
County Counsel, for Plaintiff and Respondent.
No
Appearance for the Minor.
* * *
Samantha
W. (mother) appeals from judgment terminating
son, P.W., and vesting sole custody in his father, Edward H. (father), without
any provision for visitation. Mother
argues the order must be reversed because there was
court’s determination it was in P.W.’s best interests to deny her visitation;
there was insufficient evidence of changed circumstances to support father’s petition
for an order under Welfare and Institutions Code section 388; and because she
was not given proper statutory notice of father’s petition. We find none of these contentions persuasive,
and affirm the judgment.
FACTS
Five-month-old
P.W. was taken into protective custody
by the Orange County Social Services Agency (SSA) on February 9, 2012. He had been residing with
mother and his half-sister, N.B., who was previously declared a dependent of
the juvenile court, but had been released to mother’s care for a 60-day trial
visit. SSA took both children into
custody following reports that mother was leaving the children unsupervised for
significant periods of time, neglecting N.B.’s medical needs and engaging in
domestic violence with the maternal grandmother.
The
petition alleged that dependency jurisdiction over P.W. was appropriate based
on mother’s failure to protect him (Welf. & Inst. Code, § 300, subd.
(b)), and her abuse of N.B. (Welf. &
Inst. Code, § 300, subd. (j); all further statutory references are to the
Welfare and Institutions Code.) Father
was identified in the jurisdictional petition and it was alleged he “knew or
reasonably should have known
that . . . mother was placing [P.W.] at significant risk of abuse
and neglect as evidenced by . . . [his] own statements that he was
concerned for the welfare of the child while in the mother’s care.â€
The
detention hearing commenced on February 15, 2012, and while
father was present, mother was not. The
court initially appointed the public defender to represent father, but the
deputy public defender present declared a conflict on the basis she already
represented mother in the dependency case involving N.B. The court then appointed the public defender
to represent mother and appointed juvenile defenders to represent father. Mother’s counsel informed the court that her
office had been in contact with mother earlier in the day, and mother reported
she was having trouble getting to court.
However, counsel had not had the opportunity to discuss the detention
issues with mother. On that basis,
mother’s counsel requested a one-day continuance in the detention hearing. The court agreed to defer the detention
hearing until 8:30 a.m. the following day.
Due to
the press of other matters, the detention hearing did not resume the following
morning. Instead, it was pushed back
into the afternoon session and commenced at 1:45. At that point, mother was not present. Her counsel represented to the court that mother
had been present earlier in the day and the two of them had spoken
briefly. Counsel stated she believed
mother had been made aware the hearing would resume at 1:30,
but could not say “with certainty†she advised mother to return to court. She informed the court that mother was
requesting an additional continuance so that she could retain private
counsel. The court denied the
continuance.
The
court then granted father’s request to keep his new address confidential due to
concerns about mother’s behavior. As
father’s counsel explained “[a]t this point I have no basis to request a
restraining order against mother. But I
have advised my client that should he start receiving any threatening messages
or being on the receiving end of any threats to his person or his family, that
he is to contact police authorities immediately and then call my office so that
I can put the matter on calendar for an emergency restraining order on an ex
parte basis.â€
Father’s
counsel then asked the court to release P.W. into his custody, pointing out
father was a non-offending parent, who was a stay at home parent to P.W.’s
half-siblings. After hearing some
testimony from father about his relationship with P.W., the court declared him to
be P.W.’s presumed father.
Mother arrived
at the hearing shortly thereafter. After
briefly conferring with her, mother’s counsel again asked the court for a
continuance so mother could retain private counsel. The court again denied the request. After questioning mother about P.W.’s paternity,
the court declared a brief recess to allow mother’s counsel to confer with her
about the issues before the court. When
the hearing reconvened, however, mother was no longer present. Her counsel informed the court mother’s “last
statement before she left was she’s fine with the child being placed with the
father.â€
The
court then ordered P.W. released into the custody of father. With respect to visitation, mother’s counsel
suggested that because it would likely order her visitation to be professionally
monitored, it should take place in Orange County, rather
than in Lake Elsinore, where father lived. She
requested a visitation schedule of three times per week, for two hours per
visit, with the “understanding the court may deviate from that in light of the
age of the child and the distance of travel.â€
P.W.’s counsel objected to visitation in excess of once per week and SSA
requested a schedule of two visits per month, which was agreeable to father. The court ordered mother would have
professionally monitored visitation twice per week, for two hours, at a
confidential location chosen by SSA.
On
March 2, the court held a hearing on father’s request for a temporary
restraining order against mother. It
noted on the record that all parties had been served with the application for a
restraining order through counsel and mother’s counsel appeared on her
behalf. Mother’s counsel informed the
court she had an “electronic communication†with mother concerning the application,
and mother stated she was opposed to issuance of the restraining order.
Father
declared under penalty of perjury he had been receiving harassing phone calls
from mother, which were disrupting his personal life and family. He also described receiving visits from both
law enforcement officers and a social worker in response to allegations of
child abuse made against him by mother.
Father expressed concern that mother was “unstable†and might “harm [him
and his] family.†The request for the
restraining order was supported by both SSA and P.W.’s counsel, while mother’s
counsel argued against it on the basis the application was not supported by
sufficient evidence.
The
court issued the temporary restraining
order, but reiterated its prior order for twice monthly monitored
visitation between Mother and P.W., “at a location that is designated by the
Social Services Agency . . . not to be
in father’s home.†The court’s order
specified that transportation of P.W. to the visits “must be provided by [a]
SSA designee.†It then set a hearing for
March 22, 2012, the date previously set for the combined jurisdictional and
dispositional hearing, to consider whether the temporary restraining order
should be made permanent.
Mother
failed to appear on March 22, 2012, and her counsel
once again sought a continuance, explaining she had made efforts to notify
mother of hearing dates both by e-mail and “by communication through the
assigned investigator on this case,†but had “no extensive conversations†with
mother about the issues before the court.
Counsel stated her belief that “if we were granted a brief continuance,
we could secure [mother’s] presence here.â€
All other parties opposed the continuance, noting it seemed unlikely
mother would appear at a later date if the continuance was granted. The court denied the continuance.
With
respect to jurisdiction and disposition all parties submitted on the reports
prepared by SSA. The court found by
clear and convincing evidence that P.W. came within the jurisdiction of the
juvenile court and that vesting custody in mother
would be
detrimental to him. It ordered P.W.’s
custody vested in father, with visitation for mother. The court then continued the matter to September 11, 2012, for a six-month review, and set a May 24, 2012, “termination review†hearing; i.e., a hearing to consider
termination of jurisdiction. The court
ordered SSA to provide notice “to all parties as required by law†and ordered
mother’s counsel to make “best efforts†to notify her of those dates.
With
respect to the restraining order issued against mother, father requested a
continuance of the hearing date on the order to show cause why the temporary
order should not be made permanent. The
sheriff’s department had been unsuccessful in its efforts to serve mother with
the temporary restraining order and order to show cause, and on that basis the
court ordered the matter continued to April 5.
Father’s counsel informed the court that mother was continuing to call
father and had indicated to him she “was back at the Vine Avenue
address as listed in the report.†The
court indicated it would try to get that information to the sheriff’s
department for purposes of further service efforts.
On April 5, 2012, the court once again continued the hearing on the order to show
cause because the sheriff’s department was still unsuccessful in its efforts to
serve mother. On April 18, the court
noted the sheriff’s department reported five attempts to serve mother on four
different dates and had made additional efforts to confirm her address. The court once again continued the hearing to
May 3, 2012. On May 3, father’s counsel
stated the court the sheriff’s department was still unable to serve mother and
asked for one more continuance “before the termination review on May 24.†The court granted the request, setting the
continued hearing for May 24, 2012.
In
connection with the May 24 termination review hearing, SSA filed a report
recommending termination of jurisdiction over P.W. with an exit order awarding
custody to father. The report noted that
P.W. had been placed with father since February 16, 2012, was healthy and doing
very well. P.W. interacted appropriately
with his two
half-brothers,
who likewise appeared healthy and well cared for. With respect to mother, the report reflected
numerous efforts to contact her regarding scheduled visitation, but to no
avail. Initially, the visitation monitor
was able to leave telephone messages for mother, but the messages were not
returned. Later, the phone number
initially used was reported to be “invalid,†and other contact numbers obtained
by SSA were reported to be “disconnected.â€
Father expressed frustration that mother, who had not yet been served
with the restraining order, persisted in calling him “around the clock†to
harass him – including with death threats – but did not make any effort to
visit with P.W. He supplied SSA with six
different telephone numbers from which mother had placed calls to him since
March. Father explained he would like
the dependency case closed “so they could work on the healing process.â€
In
light of mother’s “non-complian[ce]†and her failure to make “any effort to
contact [SSA] for visits with the child,†SSA concluded she had “no interest in
the well-being of the child†and “it would be appropriate to terminate
proceedings.â€
Mother
once again failed to appear at the hearing on May 24, 2012. Father’s counsel reported that mother had
continued to elude service of the temporary restraining order despite the efforts
of both her office and the sheriff’s department. In light of the inability to serve mother,
father’s counsel asked that the order to show cause on the restraining order go
off calendar. With respect to the
“termination review†issue, father’s counsel explained that while father was in
agreement with SSA’s recommendation to terminate jurisdiction, she believed
that because the hearing date was “non-statutory,†mother’s counsel “has the
right to take the hearing off calendar.â€
Father’s counsel then stated father intended to file a section 388
motion that day, also seeking an order to terminate jurisdiction.
P.W.’s
counsel also expressed agreement with the idea of terminating jurisdiction,
noting father is “an excellent father,†who is “taking very good care of his
children.†Her only reservation
concerned the family’s safety “because of [mother’s] threat to kill the
father.â€
As
anticipated, mother’s counsel then informed the court she was requesting the
termination review hearing go off calendar, since it was a “non-statutory dateâ€
and she had “no information†regarding mother’s position on the issue of
terminating jurisdiction. The court,
after expressing some frustration with mother’s evasion, her failure to visit
with P.W., and her general attitude of non-compliance, ordered the matter off
calendar, noting the six-month review hearing remained on calendar for
September 11.
Father
did file his section 388 motion that same day.
He relied largely upon the facts contained in SSA’s most recent report
and argued court supervision over P.W. was no longer required to ensure his
safety and that P.W. would benefit from eliminating “the . . . interference
that naturally arises from having an open dependency.†The following day, Friday May 25, the court
set a “prima facie hearing†for June 12, 2012, to determine whether there was
sufficient evidence to warrant a full hearing on the section 388 motion. It ordered the clerk to give notice to all
counsel and specifically ordered mother’s counsel to notify her.
The
court subsequently ordered the prima
facie hearing advanced to Wednesday, May 30, pursuant to the agreement of
all counsel. However, when the hearing
commenced on that date, mother’s counsel objected to proceeding, explaining
that while she had spoken with mother “at the end of the week†and had also
given mother notice of the June 12 date by e-mail – the means of communication
mother had advised her was best to use – she had not received any response and
thus “did not know if [mother] has a desire to be present.†Counsel then requested the matter revert to
the June 12 date for which mother had been given notice.
After further
discussion, mother’s counsel clarified that if the court felt it was appropriate
to proceed with the prima facie hearing that day, she was prepared to do so and
asked only that if the court determined there was sufficient basis to warrant
an evidentiary hearing on the section 388 petition, “I have sufficient time to
notice my client with regard to that.â€
She then suggested the evidentiary hearing could be set for June 12, “as
[mother] has already received notice of a hearing set for that date.â€
The
court then proceeded with the prima facie hearing and found there was sufficient
evidence of both a change in circumstances and that a termination of
jurisdiction would be in P.W.’s best interests, to warrant an evidentiary
hearing on the section 388 petition. It
then set that hearing for June 12 and ordered mother’s counsel to once again
give her notice; the court also ordered the clerk to send notice to mother’s
last known address.
Mother
failed to appear at the June 12 hearing.
Her counsel again asked the court to continue the matter so she could
“make further attempts to locate [mother.]â€
Counsel explained with more specificity that she had spoken with mother
“on May 25th after receiving the
notification that prima facie would be heard on June 12 and to advise her of
the June 12 date.†(Italics
added.) During that conversation mother
informed counsel that e-mail was the best way to contact her. Counsel stated she had e-mailed mother about
the June 12 date, but had not received any response. She then argued that because she had an
e-mail address which “mother purports to check regularly, . . . with a little
more time, I may be able to secure mother’s presence.†The court denied the requested
continuance.
On the
merits, father’s counsel first acknowledged the proposed exit orders requested
were “very strict,†with father getting sole physical and legal custody, and no
visitation ordered for mother. Counsel
explained this arrangement was appropriate, however, because of mother’s lack
of compliance and her inappropriate behavior,
including
making threats against both father and P.W.
Counsel then pointed out that mother’s unwillingness to make her
whereabouts known made it virtually impossible for father to work with her to
arrange visitation or make decisions concerning P.W.’s welfare. Both SSA and minor’s counsel joined in
father’s request.
Mother’s
counsel stated mother was “opposed to the case closing†and to the “proposed
exit orders.†She explained mother had
“provided me with a litany of concerns which she has purported to track down
the evidence of to support,†but did not disclose what those concerns
were. Counsel further explained that
“[i]f the case does close, mother would be asking for joint legal custody and
for the court to make appropriate visitation orders.†Counsel acknowledged that while “mother has not
seen the child recently through Social Services’ provisions for visitation,
[she] does love her child and would like the opportunity to continue to be a
part of her child’s life.â€
After
considering the evidence and the parties’ arguments, the court granted father’s
motion to terminate jurisdiction as proposed.
It vested full legal and physical custody of P.W. in father and ordered
no visitation for mother.
DISCUSSION
Denying Visitation
Mother
first contends the trial court abused its discretion by failing to order
visitation for her when it terminated dependency jurisdiction over P.W. “Under section 362.4, the juvenile court may,
when it terminates jurisdiction over a case, issue an order ‘determining the
custody of, or visitation with, the child.’
The juvenile court’s section 362.4 order may be enforced or modified by
the family court.†(In re Ryan K. (2012) 207 Cal.App.4th 591, 594, fn.5.) As mother acknowledges, “‘[t]he appropriate
test for abuse of discretion is whether the trial court exceeded the bounds of
reason.’†(In re Stephanie
M. (1994) 7 Cal.4th 295,
318-319.) What this means, however, is
that we “‘will not disturb that decision unless the trial court has exceeded
the limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination . . . .’†(
reasonably be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.’†(Id.
at p. 319.)
Mother’s
position is that the court’s decision to deny her visitation following
termination of the dependency case qualifies as an abuse of discretion because
it cannot be reconciled with the court’s earlier determination that it was in
P.W.’s best interests to provide her with visitation during the pendency of the
case. In mother’s view, there was no
significant change in circumstance and she complains the court “made no
findings of fact nor did it state any other reason for drastically changing the
prior court order for twice monthly visits to an order denying any visits at
all.â€
We are
unpersuaded. Mother’s argument simply
ignores the fact that the termination of court supervision was itself a significant
change in circumstance warranting a change in the visitation order. The visitation offered to mother during the
dependency case was tightly controlled due to safety concerns arising out of
her threats and harassing behavior. The
court ordered father’s address remain confidential, all visitation be
professionally monitored and take place at a confidential location chosen by
SSA, and that transportation of P.W. to the visits be provided by [a] SSA
designee. Once jurisdiction was
terminated, SSA would no longer be involved and able to continue those
significant protections. Consequently,
an order providing for visitation between mother and P.W. after termination of
jurisdiction would have compromised the safety of both P.W. and father.
Moreover,
while we acknowledge mother’s point that regular visitation between parent and
child is a significant right, which helps to maintain that important
relationship,
we cannot ignore – nor expect the juvenile court to ignore – the fact that
mother made no apparent effort to exercise that right during the pendency of
the case. While mother, through her
counsel, expressed her love for P.W. and her desire to be a continuing part of
his life, her conduct throughout the case rather clearly suggested she was not
able to participate in meaningful visitation.
The court was not required to pretend otherwise in formulating its exit
orders. We find no abuse of discretion.
Substantial Evidence
Mother
also contends there was insufficient evidence of any change in circumstances to
support father’s section 388 petition.
Again, we disagree. Mother
asserts “there had been no significant change of circumstance
uncorroborated statements that [she] was harassing and threatening him.†(Italics added.) But those assertions, made in support of
father’s request for a restraining order, were under oath and thus do qualify
as substantial evidence. Further, the
court was entitled to believe father, and mother’s attempt to undermine his
credibility on appeal is simply ineffective.
Appellate courts “‘cannot reweigh evidence or pass upon witness
credibility. The trial court is the sole
arbiter of such conflicts. Our role is
to interpret the facts and to make all reasonable inferences in support of the
order issued. [Citation.]’†(People
Ex. Rel. Harris v. Black Hawk Tobacco, Inc. (2011) 197 Cal.App.4th 1561,
1567.)
Additionally,
of course, there was the evidence mother had eschewed visitation and was not cooperating
in any aspect of the dependency case, plus the evidence that father was
providing P.W. with a safe and stable home.
Taken together, these circumstances were more than sufficient to justify
the court’s consideration of a petition to terminate jurisdiction.
3. Mother
Received Actual Notice of the Section 388 Petition
Finally, mother asserts
the court had no authority to terminate jurisdiction because she was not
provided with proper statutory notice of the section 388 hearing. We disagree.
First, we note it is undisputed mother was served with notice of the
dependency proceeding and she appeared in court at the detention hearing. She was aware of the ongoing nature of the
case and had maintained at least sporadic contact with her counsel. Second, as explained in
always possible to litigate a dependency case with all parties present. The law recognizes this and requires only
reasonable efforts to search for and notice missing parents. Where reasonable efforts have been made, a
dependency case properly proceeds. If a
missing parent later surfaces, it does not automatically follow that the best
interests of the child will be promoted by going back to square one and
relitigating the case. Children need
stability and permanence in their lives, not protracted legal proceedings that
prolong uncertainty for them. Further,
the very nature of determining a child’s best interests calls for a
case-by-case analysis, not a mechanical rule.â€
(Id. at p. 191.) Thus, “there is no due process violation when
there has been a good faith attempt to provide notice to a parent who is
transient and whose whereabouts are unknown for the majority of the
proceedings. [Citations.]†(Id.
at p. 188.)
Section
297, subdivision (c), specifies the required notice to be given in the case of
a section 388 petition and explicitly recognizes the need for flexibility: “If a petition for modification has been
filed pursuant to Section 388, and it appears that the best interest of the
child may be promoted by the proposed change of the order, the recognition of a
sibling relationship, or the termination
of jurisdiction, the court shall order that a hearing be held and shall
give prior notice, or cause prior notice to be given, to the social worker or
probation officer and to the child’s attorney of record, or if there is no
attorney of record for the child, to the child, and his or her parent or
parents or legal guardian or guardians in the manner prescribed by Section 291
the court.†(Italics added.)
Here,
by the time father filed the section 388 petition, it was well-established
mother could not be served with notice by usual means. She refused to appear for hearings, had no
fixed address or reliable phone number, and had managed to evade repeated
efforts to serve her with a temporary restraining order. Nonetheless, when the court ordered mother’s
counsel to provide her with notice of the section 388 petition, counsel reported
back to the court that she had done so. Specifically, mother’s counsel stated she had
spoken with mother “on May 25th after
receiving the notification that prima facie would be heard on June 12 and to
advise her of the June 12th date.â€
(Italics added.) Because mother
informed her counsel during that conversation that e-mail was the best way to
contact her, counsel also e-mailed mother about the June 12 date.
Thus,
it was at the specific request of mother’s counsel that the court set the
evidentiary hearing on the section 388 petition for June 12; i.e., the date
counsel had already notified mother would be the hearing date in connection
with the section 388 petition. The court
then ordered mother’s counsel to again provide her with notice. Under the circumstances, we conclude this was
not only an eminently reasonable manner of providing notice to mother, but also
the manner most likely to be effective; it thus satisfied the notice
requirement of section 297, subdivision (c).
Finally,
even if we believed there were a flaw in the notice provided to mother in
connection with the section 388 petition, we would find it harmless. (In re
A.D. (2011) 196 Cal.App.4th 1319, 1325 [“a failure to give notice in
dependency proceedings is subject to a harmless error analysis. Because mother did not show a more favorable
result was likely absent the error, the orders stand.â€].) There is absolutely no
evidence to
suggest that if mother had received some other form of notice, she would have
appeared at the hearing on June 12, nor is there any basis to conclude the
outcome of the hearing would have been altered.
DISPOSITION
The
judgment is affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
