In Re Michael B.
TAYLOR, J.*
Virginia B. appeals from a jurisdictional and dispositional judgment declaring Michael B.1 a dependent child of the court and other orders made on October 31, 1988, and May 4, 1989; orders made April 5, 1991, denying appellant‘s petition, under
Appellant‘s various contentions are set forth hereunder, as they arise in our discussion of the facts. Two of the contentions raised are discussed in the published portion of this opinion.
SECTION 388 PETITION
On April 3, 1991, the parties appeared in court for a judicial review hearing and a hearing on a petition previously filed by appellant рursuant to
Blake, Michael‘s father, testified that appellant was a caring mother, loved Michael a lot, was bright and had much to offer Michael in the area of education. Blake testified he was employed as a floor refinisher, working from approximately 8 a.m. to 5 p.m.; that he took care of Michael in the morning before work, and that Blake‘s sister got Michael off to school in the morning. Blake and Michael lived in the upstairs portion of a large house in which Blake‘s sister lived. Blake‘s sister watched Michael after school.
Blake testified that appellant аlways had a violent temper, and her temper got worse after Michael was born. On the Saturday before the hearing, Michael visited with appellant and got so upset he did not want to visit with her the following day. Because of this, Blake did not allow visitation the next day. Michael had told Blake that appellant “blew up” on four different occasions on Saturday, not just with Michael but with the monitor, telling the monitor, “You get your own child.” Michael was upset the whole night, did not eat his dinner and was worried about the visit the next day.
Blake testified that he had a firm and loving relationship with Michael and Michael appeared to be comfortable in his presence. Blake allowed Michael
At the time of this hearing, Michael was in second grade and doing well in school.
Donald Ray Reinschmidt dated appellant and had monitored visits with Michael. He observed appellant to be an excellent mother whose son was “her whole life.” He monitored about five visits when visitation first started. Since about the end of 1989, he had not served very often as a monitor. His opinion concerning appellant was based primarily on the period of time prior to the end of 1989.
William Baird had acted as an approved monitor for visits between appellant and Michael and had been the monitor during the last visit on the preceding Saturday. Appellant got angry and complained of being “kicked around” by Blake. She got angry at Baird because he did not want to drive to the beach. Sometime after 5 p.m., Michael got extremely upset because he realized the appellant did not have a phone and he was expеcted to phone his father. Michael burst into tears. Appellant told Michael she would tell Blake it was not his fault, and she and Michael cried for about 10 minutes while Michael sat on her lap. Michael did not appear to be frightened of appellant at any time during the Saturday visit.
Dr. Fred Jerome Goldstein, a clinical psychologist, testified he had been retained by appellant as an expert in this case. He tested and evaluated appellant and Michael. He reviewed voluminous material and wrote evaluations. His report dated January 18, 1990, was received into evidence, as were other reports and declarations from appellant‘s friends. Goldstein stated that appellant‘s psychotic episodes were predictable, and that, before going into a manic or depressive state, she would have signs of an onset. Appellant had learned to anticipate these and to act to protect her child. Goldstein opined that when something “really ... threatening” to appellant happened, like having her child taken from her in а court hearing, appellant suddenly did “something crazy like taking the child away all night.” Then she “ends up [at] Olive View ...; parking her car and picking up rocks and putting [them] into the trunk ... and having police come by and find she‘s incoherent.”
Goldstein found appellant resistant to his counseling efforts. It was Goldstein‘s opinion that, for the foreseeable future, Michael should continue living with Blake.
(1a) Appellant contends that the court‘s order denying her request to modify or set aside its prior determination as to custody and visitation must be reversed because the court erred in rеquiring that she prove the existence of changed circumstances by “clear and convincing evidence.” We do not agree.
(2) A dependency court order may be changed or modified under
(1b) Although the court stated in its ruling “the court is not convinced by clear and convincing evidence that any of the allеgations of the 388 petition are true,” it also stated that it “[could not] find that there [have] been any change of circumstances since the previous court orders which would militate toward changing the previous orders in the best interest of the child.” Since the court was unable to find any changes of circumstances warranting a change of the prior orders, it is clear that the same determination would have been made, even under a lower standard of proof, i.e., by a preponderance of the evidence. Our review of the evidence presented, as against the changes of circumstances set forth in the section 388 petition, confirms this.
TERMINATION OF JURISDICTION
The court terminated jurisdiction of the juvenile court but stayed its order until April 29, 1991, to permit a file to be opened in family law court. With the agreement of the parties, the court directed counsel for the minor to have a family lаw file opened for purposes of having the court‘s custody and visitation order filed therein. A copy of the family law order so entered was to be filed in the dependency court.
The minute order of April 29, 1991, reflects that the order was filed by minor‘s counsel, and jurisdiction was terminated on that date.
The appellant argues that the termination of jurisdiction must be reversed because of errors made in the court‘s prior orders. As discussed above, we find no error warranting reversal.
(4) Appellant‘s final contentions relate to the court‘s order permitting access by the family law court to records of the juvenile dependency court proceedings and to reports prepared subject to court ordеr in those proceedings “if either party seeks a modification of [the juvenile] court‘s family law order.” Appellant argues that this order exceeds the juvenile court‘s jurisdiction under section 362.4,11 because that section gives the court authority to issue orders determining custody or visitation only, and because it violated appellant‘s “protected liberty intеrest” in the confidentiality of the court‘s records.
Appellant points us to the case In re Sarah M. (1991) 233 Cal. App.3d 1486 [285 Cal. Rptr. 374] to support her assertion that the court exceeded its jurisdiction under section 362.4. In dicta, the court in Sarah M. said that the
The juvenile court‘s order set forth its custody and visitation determinations and did so with specificity. When the juvenile court terminated its jurisdiction over the minor, it properly transferred its custody and visitation order to the superior court under the authority of section 362.4. Thereafter, the parties may seek relief or modification of that order in the superior court basеd on a showing of “the best interest of the child.” (
To assist the family law department of the superior court in any later determinations it might be called upon to make, the juvenile court ordered that its records and reports should be made available to that court. This order is separate and distinct from the juvenile court‘s custody and visitation orders but pertain directly to them and to changes that might later be sought on a showing relating to the best interest of the child. We therefore conclude that the order does not exceed the juvenile court‘s jurisdiction under section 362.4.
Appellant contends that the order violated her “protected liberty interest” in the confidentiality of the juvenile court records without due proсess of law. She points us to the case of McLaughlin v. Pernsley (E.D.Pa. 1988) 693 F. Supp. 318 as illustrative of her point, stating that the issue there was whether the city‘s social services department violated the foster parents’ due process rights when it failed to give 15 days’ notice of the decision to move the foster child and of their right to appeal that decision.
Section 827 governs the confidentiality of juvenile court records. Subdivision (b)(1) reaffirms the belief of the Legislature that “juvenile court records, in general, should be confidential.” Subdivision (a) provides that: “Except as provided in Section 828,[12] a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in any such case or made available to the probation officer in making his or her
The record before us is devoid of any filed petition requesting release of juvenile court records or reports. Rather, it appears from the record that, during an unreported meeting in chambers between court and counsel, the court indicated its belief that an order waiving confidentiality of the juvenile court‘s records and reports would be beneficial to the family law court for its use in whatever modification matters might be brought before it. When the court returned to the record, it stated, “I did have a conference in chambers and I did givе a very tentative decision to all counsel about how I felt ... and indicated to counsel that it was tentative and I would listen to argument.... [¶] If anyone wants to argue, you may do so, or you may waive argument.” Appellant‘s counsel13 responded, “The only part I would argue, ... the court has indicated [it will] require the parties to waive constitutionality of the 730‘s in this matter in the fаmily law orders. [¶] I just note my legal objections for the record; otherwise, I‘ll submit on the record.” No objection to the proposed order waiving confidentiality of records and reports was expressed by counsel for the minor or counsel for the father.
On the facts before us, we can find no violation of appellant‘s due process rights, nor do we find that the court exceeded its authority under section 827, subdivision (a). Inasmuch as that section permits the court to authorize disclosure of its proceedings to such other persons as it may designate “upon filing a petition therefor,” there is no statutory bar to such disclosure. Although no petition had been filed seeking disclosure, the court, on its own motion, gave notice to the parties and an opportunity to be heard as to whether such disclosure should be made. We do not find this procedure to be beyond the scope of section 827, subdivision (a), or violative of appellant‘s due process rights. The disclosure contemplated was limited, permitting disclosure only to a family law court, if that court determined to avail itself of the records for purposes of a hearing or hearings relating to custody and visitation of the minor. The order was reasonable inasmuch as it related to the evidence on which the juvenile court‘s custody and visitation orders were made, and against which future requests for modification based on change of circumstances or new evidenсe, if made, would be measured. Given the limited nature of the disclosure, the notice given and opportunity to be heard,
The judgment and orders are affirmed.
Woods (A.M.), P.J., and Epstein, J., concurred.
A petition for a rehearing was denied September 11, 1992.