In re T.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. VACHESLAV S., Defendant and Appellant.
B293453 (Los Angeles County Super. Ct. No. DK24133AB)
Court of Appeal of the State of California, Second Appellate District, Division Seven
July 21, 2020
CERTIFIED FOR PUBLICATION
Filed 7/21/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re T.S. et al., Persons Coming Under the Juvenile Court Law.
B293453
(Los Angeles County Super. Ct. No. DK24133AB)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. VACHESLAV S., Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Reversed and remanded.
Law Offices of Honey Kessler Amado, Honey Kessler Amado and Nancy Rabin Brucker for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Kimberly Roura, Senior Deputy County Counsel, for
Vacheslav S., father of now-10-year-old T.S. and six-year-old Christian S., appeals the juvenile court‘s orders terminating jurisdiction over T.S. and Christian pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
1. Detention of T.S. and Christian
On July 16, 2017 police searched the family‘s home in connection with the arrest of T.S. and Christian‘s stepfather, Albert N.2 During the search police found a loaded handgun on a shelf in the garage and eight ounces of cocaine in a purse in Nataliya and Albert‘s closet. The police referred the family to the Los Angeles County Department of Children and Family Services (Department) for investigation.
A Department social worker interviewed Nataliya on July 18, 2017. Nataliya claimed the cocaine did not belong to her and speculated it may have belonged to her sister, who had recently visited for Nataliya and Albert‘s wedding. Nataliya said she did not use illegal drugs and was willing to submit to drug testing. As for the handgun found by the police, Nataliya said it belonged to Albert‘s brother, who had also been in town for the wedding.
Nataliya informed the social worker she and T.S. had emigrated to the United States from Russia in 2013, while she was pregnant with Christian. She had never been married to Vacheslav, who still resided in Russia. Nataliya met Albert shortly after arriving in the United States, and they had been married for one month. During an interview with the social worker T.S. referred to Albert as “dad.”
On August 1, 2017 the Department filed a petition to declare T.S. and Christian dependent children of the juvenile court under
At the detention hearing on August 1, 2017 the court ordered the children detained from Nataliya. Vacheslav did not appear at the hearing because he
2. The Jurisdiction/Disposition Report
After the detention hearing the children were placed with their maternal grandmother. Nataliya had monitored visits with the children on a regular basis. She continued to insist the
cocaine found in the house did not belong to her, and she denied any knowledge of Albert‘s drug-trafficking activity.
In interviews with the social worker Vacheslav said he had last seen the children when they visited Russia in 2014. He had some telephone contact with the children after that but had not spoken to them in about a year. He said he had tried to see them when he visited Los Angeles in 2014, but Nataliya would not allow it. Vacheslav planned to attend the jurisdiction/disposition hearing and intended to seek custody of the children and take them to Russia.
On September 19, 2017 Vacheslav had a monitored visit with the children in the Department‘s offices. The social worker noted, “[T]he children did not call him ‘dad,’ hug him or show any sign of affection or attachment.” Vacheslav asked the children questions and tried to engage them. The social worker privately asked T.S. if he knew Vacheslav, to which T.S. replied, “[H]e is that motorcycle guy from the video. . . . Daddy Slava?”
3. The Jurisdiction/Disposition Hearing
The jurisdiction/disposition hearing was held on October 12, 2017. Both parents appeared. Nataliya‘s counsel submitted evidence Nataliya had been complying with her case plan and had petitioned for dissolution of her marriage to Albert. Neither parent contested a finding of jurisdiction.
The juvenile court sustained the petition and continued the disposition hearing pending resolution of jurisdictional issues. Both parents were permitted to have unmonitored visits in a public setting.
In a report dated November 21, 2017 the Department stated the children‘s visits with Nataliya were going well and Nataliya‘s drug tests had been negative. However, the
Department expressed concern Nataliya had “poor judgment in regards to the children‘s well-being and safety in the past.” The Department recommended the children continue to be placed with their maternal grandmother and services continue to be provided to the family.
On December 1, 2017 Nataliya submitted a declaration in which she stated Vacheslav had urged her to move to the United States in 2013 to assist with
Nataliya‘s declaration also recounted that, in 2015, Nataliya sued Vacheslav in Russia for child support. Vacheslav initially contested paternity, but, after genetic testing was done, the Russian court found he was the father of T.S. and Christian. The Russian court ordered him to pay child support, although Nataliya alleged the support was paid to Vacheslav‘s mother and never given to her. Vacheslav did not seek custody or visitation in the Russian proceeding.
In a report dated February 8, 2018 the Department stated the children were doing well in their maternal grandmother‘s home. Nataliya had three unmonitored visits per week in a public setting and one unmonitored overnight visit per week. Nataliya was caring and affectionate with the children, and they
had a strong bond and attachment to her. Nataliya was entitled to visit the children more often, but she told the social worker she was very busy starting a new business.
The Department continued to express concern over returning the children to Nataliya. Nataliya had recently requested a male friend be allowed to monitor her visits and potentially move into the grandmother‘s home to assist with the children; however, the friend had an extensive criminal record. The Department asserted this was evidence of Nataliya‘s “pattern of associating with men who have serious criminal histories” and her failure to address the issues that had initially brought the children within the Department‘s jurisdiction.
The Department reported Vacheslav had two visits with the children in December 2017 while he was in Los Angeles. He spoke to them by telephone only once since then. The Department concluded, “[P]lacing the children with their father in Russia would be detrimental to their well-being and emotional stability as father has not had regular contact with the children for many years and has not maintained a relationship with them since the inception of this case.”
The continued disposition hearing was held on February 22, 2018. Vacheslav testified he wanted custody of the children although he admitted he had
The court declared T.S. and Christian dependents of the court and released them to Nataliya. The court ordered family maintenance services be provided to Nataliya and enhancement services be provided to Vacheslav. Vacheslav was permitted unmonitored visits at least once per week in California or via telephone/video conference.
4. The Six-month Review Hearing
In a report dated July 2, 2018 the Department stated the children were comfortable and well-cared-for in Nataliya‘s home. The children had been participating and progressing in their court-ordered services. Vacheslav had unmonitored visits over video conference with the children at least once per week. T.S. stated he enjoyed visits with his father but wanted to continue living with his mother and brother. Vacheslav continued to express his desire to have the children live with him in Russia. He also sought to have more frequent video conferences with them.
The Department recommended the court order continued family maintenance services. While Nataliya had made progress in her court-ordered therapy and counseling, she had not provided proof of completion or participation for all services that had been ordered. The Department also expressed concern over Nataliya‘s ability to provide for the children by means of a legal income; she was renting a three-bedroom house and employed a housekeeper five days a week, but she had failed to provide any proof of income. In addition, the Department opined Nataliya “has showed no personal awareness as to how she failed to protect the children causing the initial detention.” Nataliya had also “shown poor judgment in the last few months [as] evidenced by the fact that the children have not received well-child check-
up[s], their immunizations are not current, their dental examinations have not occurred and [T.S.‘s Individualized Education Program] only recently was approved by mother.”
In a subsequent report dated July 13, 2018 the Department stated Nataliya had provided proof the children attended well-child check-ups and Christian had received immunizations. The social worker also reported that Nataliya had refused to allow Vacheslav to visit the boys while he was in Los Angeles prior to the review hearing.
The six-month review hearing was held on July 13, 2018. The juvenile court found by a preponderance of the evidence that Nataliya was not in compliance with her case plan and continued jurisdiction was necessary. The court ordered continuation of services for both parents and ordered visitation for Vacheslav every other week for one week at a time when he is in Los Angeles in addition to unmonitored video conferences.
5. The 12-month Review Hearing
In October 2018 the Department reported Nataliya had made significant progress in therapy and counseling. The service providers did not express any ongoing concerns regarding the children remaining in Nataliya‘s care. The children participated in unmonitored video conferences with Vacheslav at least once per week. Vacheslav also had two unmonitored weekend visits with the children since the last hearing. No issues had been reported regarding these visits. Prior to one visit the Department social worker observed Vacheslav acting appropriately with the boys, who were excited about their weekend visit.
The Department recommended the court terminate jurisdiction, grant sole physical custody to Nataliya and grant joint legal custody to Nataliya and Vacheslav. The Department further recommended the court order unmonitored weekend visits (or longer during school breaks) to Vacheslav when he was in California.
The 12-month review hearing was held on October 9, 2018. At the outset of the hearing Vacheslav‘s counsel requested the matter be set for contest, stating he sought to call witnesses in support of Vacheslav‘s request for custody. The court inquired whether Vacheslav had filed a
removal when I‘m going solely from one to another instead of from one to joint.”
The juvenile court then asked Vacheslav‘s counsel for an offer of proof regarding the evidence he wished to present. Vacheslav‘s counsel responded he would present testimony from a private investigator that Nataliya resided with a convicted felon and associated with drug dealers. The investigator would also testify there had been activity outside Nataliya‘s residence consistent with drug use, including people smoking in cars and “various individuals going in the house unloading things.” Vacheslav‘s counsel also stated he would seek to have Nataliya testify regarding these observations. The court observed, “So all of [Vacheslav‘s attorney‘s] witnesses are about why the mother shouldn‘t have custody, as opposed to why his client should have custody.”
The court denied the request to set the matter for contest, finding the evidence proffered was not relevant to the issues before the court. Proceeding to argument, Vacheslav‘s counsel requested week-long visitation with advance notice when Vacheslav was going to be in Los Angeles, during which time Vacheslav would ensure the children continued to attend school. He also requested video calls multiple times per week, plus visits in Russia when school was out of session.
The court found Nataliya had complied with her case plan and the children were no longer at risk. The court terminated jurisdiction over T.S. and Christian and granted sole physical and legal custody to Nataliya. Vacheslav was awarded unmonitored visits in California two weekends each month, plus video calls at least once per week.
DISCUSSION
1. Governing Law
When terminating its jurisdiction over a child who has been declared a dependent child of the court,
the relevant family law file and remain in effect in the family law action “until modified or terminated by a subsequent order.”3 When making a custody determination under
2. Vacheslav Was Entitled to an Evidentiary Hearing Before the Juvenile Court Terminated Jurisdiction and Issued Exit Orders
Although the juvenile court ultimately considered Vacheslav‘s offer of proof, it initially indicated Vacheslav was not entitled to present evidence in support of his request for sole physical custody of the children as part of its exit order because he had not filed a petition pursuant to
circumstances and the children‘s best interest in determining whether jurisdiction should be terminated and in fashioning appropriate exit orders. Evidence regarding custody and visitation was necessarily relevant to the proceeding; and the court was empowered to modify prior orders, even absent a
On appeal the Department acknowledges the juvenile court‘s broad authority upon termination of its jurisdiction to fashion a custody and visitation order in the children‘s best interests without the need for a
support its position, the Department relies upon
The Department also argues, even if a separate
to the child and no available services to protect the child absent removal. (See
3. The Juvenile Court Properly Requested an Offer of Proof
Vacheslav argues he had a right to a contested hearing and the juvenile court erred by conditioning an evidentiary hearing on an offer of proof.6 Generally, a parent has due process rights in dependency proceedings. (See David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777 [“[p]arents have a fundamental liberty interest in the care, custody, and management of their children“].) However, “due process ‘is a flexible concept which depends upon the circumstances and a balancing of various
factors.’ [Citations.] Even where due process rights are triggered, it must always be determined ‘what process is due.’ [Citation.] We look to the private interest that will be affected by the agency‘s action, the risk of an erroneous deprivation of that interest, the interest in informing parents of the basis for and consequences of the action and in enabling them to present their side of the story, and the agency‘s interest in expeditious decisionmaking as affected by the burden caused by an additional procedural requirement.’ [Citation.] Accordingly, our courts have recognized that ‘[d]ifferent levels of due process protection apply at different stages of dependency proceedings.‘” (In re A.B. (2014) 230 Cal.App.4th 1420, 1436.)
applicability of an exception to termination of parental rights]; In re Thomas R. (2006) 145 Cal.App.4th 726, 732 [“[p]recluding the parents from exploring and testing the sufficiency of the Department‘s evidence is fundamentally different than requiring them to describe evidence they will offer to prove a point“].)
Still other cases have held requiring an offer of proof is acceptable, regardless of the burden of proof, when a parent is not facing termination of parental rights. For example, in In re A.B., supra, 230 Cal.App.4th 1420 the child had been removed from his mother‘s custody and placed with his father subject to the court‘s jurisdiction. (See
The court of appeal affirmed the orders. The court distinguished cases holding the request for an offer of proof was impermissible by noting that, in those cases, the parent was facing termination of parental rights, whereas in the case before it, the “fundamental issue in proceedings under
proceeding—which parent the minors will live with—is comparatively less consequential.” (In re A.B., supra, 230 Cal.App.4th at p. 1437.)
The reasoning in In re A.B., supra, 230 Cal.App.4th 1420 is applicable to the case at bar. The
4. Vacheslav‘s Offer of Proof Was Sufficient To Warrant an Evidentiary Hearing
Vacheslav argues that, even if it was proper for the juvenile court to condition an evidentiary hearing on an offer of proof, his offer was sufficient to warrant a hearing. “A proper offer of proof gives the trial court an opportunity to determine if, in fact, there really is a contested issue of fact. The offer of proof must be specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1124.)
As discussed, responding to the court‘s request for an offer of proof to justify a contested hearing on custody and visitation issues, Vacheslav‘s counsel stated he would present the testimony of a private investigator who had observed arguably suspicious activity outside of Nataliya‘s residence. He stated the testimony would also show Nataliya resided with a convicted felon despite having been told the individual was not allowed to be around the children. This proposed evidence (as well as
Nataliya‘s explanation of these circumstances) was relevant to the court‘s consideration whether jurisdiction should be terminated or whether the family required further supervision to ensure there was no substantial risk to the boys’ safety. It was also relevant to the court‘s determination of the custody and visitation arrangement that would be in the children‘s best interest. Further, the offer was sufficiently specific, setting forth the observations about which the private detective would testify. The court erred by denying Vacheslav the opportunity to present this testimony at a contested hearing.
The Department argues any error in denying a hearing was harmless because the proposed testimony was speculative and was contradicted by the social worker‘s and service providers’ reports concerning Nataliya‘s home life. (See In re Celine R. (2003) 31 Cal.4th 45, 59-60 [harmless error doctrine applies in dependency cases; dependency court order should not be set aside unless it is reasonably probable the
The juvenile court rejected the private investigator‘s testimony without hearing his account of events and the
circumstances under which his observations took place. The court also had no opportunity to assess Nataliya‘s response and her demeanor in attempting to explain the private investigator‘s observations. We, like the juvenile court, have only read the Department‘s account of Nataliya‘s living situation. If the investigator‘s testimony were believed and Nataliya could not provide a sufficient explanation, there is a reasonable probability the result of the proceedings would have been more favorable to Vacheslav—either because jurisdiction would have continued, giving him a further opportunity to make his case for custody, or because the court would have altered the custody and visitation arrangement in the exit orders. On this record we cannot conclude the court‘s error in refusing to hold a contested hearing was harmless.
DISPOSITION
The orders terminating jurisdiction, giving sole legal and physical custody to Nataliya and granting visitation to Vacheslav are reversed. The matter is remanded to the juvenile court for a contested
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.