In rе ARMANDO L., a Person Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SANDY M., Defendant and Appellant.
No. F072715
Fifth Dist.
July 14, 2016
1 Cal.App.5th 606
Rebekah S. Sass, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and Kimberly R. Helms, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
PEÑA, J.—
INTRODUCTION
At the conclusion of a review hearing pursuant to
FACTS AND PROCEEDINGS
Initial Proceedings
On October 30, 2013, a petition was filed pursuant to
According to the petition, mother failed to contact the authorities to report the abuse or to take Armando immediately to the doctor. Mother did take photographs of Armando‘s injuries. Armando reported he was disciplined by father and father‘s girlfriend by being hit. Mother had legal and physical custody of Armando, but left him in father‘s care because Armando was diagnosed with ADHD and she had trouble controlling his behavioral problems. In addition, mother had been diagnosed with ADHD and depression and was raising three other children.
Armando was immediately detained after the incident was reported to school authorities on October 28, 2013, and the juvenile court sustained the detention on October 31, 2013. Armando reported to social workers another episode of being hit by his father and explained he did not like staying with his father. Mother told social workers she was concerned about Armando‘s behaviors and believed she would have an easier time controlling him with services. Mother reported she left Armando‘s father because there was domestic violence between them. Mother was unaware father was using drugs around their son. Mother denied any domestic violence in her current relationship.
Father reported to social workers Armando had been living with him for about a year. Father admitted he had been in prison off and on since he was 18 years old and denied having any domestic violence in his current
The agency recommended mother stabilize her mental health and address the domestic violence of her past. The agency recommended mother receive nurturing classes and have a mental health assessment. The agеncy recommended family reunification services for father, including parenting classes and programs to address his substance abuse. These would include a drug and alcohol assessment to determine the extent of father‘s addiction. The agency recommended family maintenance services for mother, with custody of Armando with mother, and family reunification services for father. At the joint jurisdiction/disposition hearing on November 21, 2013, the juvenile court adopted the recommendations of the agency ordering family maintenance services for mother, reunification servicеs for father, and leaving Armando‘s custody with mother.
Supplemental Petition
The agency filed a supplemental petition pursuant to
The agency sought a change of placement from mother to the agency. Armando was placed in a group home. After continuances, the joint jurisdiction/disposition hearing on the supplemental petition was conducted on June 4, 2014. The agency reported father had made progress in his case plan and had maintained sobriety. Father completed training and had negative drug tests. Mother was also making progress in her case plan services, but Armando was not responding well after receiving those services.
Mother made efforts to provide additional supervision of Armando by staying home full time, but Armando refused to follow his mother‘s redirection of his aggressive behavior. Armando‘s physician believed Armando‘s challenges were not the fault of either parent. The recommendation to place
18-month Review Hearing
The status review report prepared by the agency in April 2015 for the 18-month review hearing noted Armando was living with his parents on a trial basis. He was staying with mother during weekdays and with his father on weekends. Father was in compliance with and completed all components of his case plan. Father had also remained drug free. Mother had also completed all of the components of her case plan and understood the programs and training she received.
In June 2015, on a trip to Wal-Mart, mother asked Armando not to be rude and to help her put things in their vehicle. Armando became upset, yelled profanities, and called her a bad mother. He then locked himself in the vehicle and refused to open the door for mother. On the drive home, Armando tried to hit and choke mother as she drove. Mother slapped Armando because she was unable to calm him down. On July 18, 2015, Armando became too aggressive for mother to handle and she called law enforcement. Armando did calm down when law enforcement arrived and he was not detained.
On July 30, 2015, the agency received a referral alleging Armando watched a pornographic video with younger siblings and touched one of them on the breast. The agency found the allegations substantiated. On September 19, 2015, during a weekend visit to mother‘s home, she could not control or deescalate Armando‘s behavior and tried using physical punishment. Law enforcement refused to intervene, and a support counselor with the Aspiranet program picked up Armando and brought him to father. On October 21, 2015, the agency decided to place Armando solely in his father‘s care in order to ensure his own safety as well as that of mother‘s other children. According to the agency, Armando has done well in his father‘s care and is less combative.
The agency reported mother believed Armando needs more time with her because father was the original source of Armando‘s trauma. Father told the agency he wanted Armando in his home because that is where he is safe. Armando said he was “over” what had happеned and appeared indifferent. Both parents told the agency they were not interested in having Armando
The brief 18-month review hearing was conducted on October 29, 2015. The juvenile court noted the agenсy was recommending termination of the dependency, custody of Armando to his father, and joint legal custody with visitation to mother as agreed by the parties. Mother‘s counsel stated his client “vehemently” opposed the recommendation because it was not in Armando‘s best interests. Mother‘s counsel told the court he had informed mother she did not have standing to contest that matter at the
The juvenile court informed the parents they had the right to a hearing before a judge on the issue of whether the court should follоw the recommendation as set forth in the social worker‘s report. Elaborating on his earlier statement, mother‘s counsel stated his client wanted a contested hearing: “It‘s my understanding that as soon as I ask for a contested hearing, there is going to be an objection that we have no standing to request a contested hearing, but I will on her behalf request a contested hearing on this matter.”
Counsel for the agency argued “that the only individual with the authority to contest or oppose an agency‘s request to dismiss is the minor through minor‘s counsel.” The minor‘s counsel then objected to mothеr‘s request for a contested hearing, arguing mother had no standing to do so. Mother responded she objected to the agency‘s recommendations “overall.” Mother‘s counsel stated mother objected to the recommendation for placement of the child and to dismissal of the action. Mother‘s counsel stated mother was concerned Armando needed more services and placement with father would be part of the exit order. Mother believed therefore that dismissal of the action was not in Armando‘s best interests.
County counsel on behalf of the agency argued that with regard to custody, and because the case was being dismissed, mother did not “have standing to contest the dismissal, then the appropriate forum to challenge the placement and the custody orders [was] in the family law court.” The court noted county counsel‘s objection was based on mother‘s lack of standing to contest dismissal of the action and the court‘s award of custody. Minor‘s counsel concurred with county counsel‘s argument and the court‘s observation. The court ruled it was following the agency‘s recommendations and ordered the case dismissed. As to the exit order regarding Armando‘s custody, the court found the proper forum was family court. The court ordered Armando‘s joint custody to both parents with physical custody to father.
Introduction
Mother contends she had standing to challenge the trial court‘s orders dismissing the dependency action, granting father physical custody of Armando, and granting additional services to Armando. Mother further contends she was denied her right to a contested hearing on these issues. According to the agency, mother‘s request for more services and custody was outside the scope of a
We conclude mother had a right to present evidence at the
Legal Principles
When a juvenile court finds a child is a dependent, in appropriate circumstances the dependency can be established without removing the child from his or her parents’ home. The juvenile court can order family maintenance services to ameliorate the conditions causing the child to be subject to the court‘s jurisdiction. After the child is declared a dependent, the juvenile court must review the status of the child every six months. (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1154; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302–303.)
Although the statute refers to the social worker and the department establishing the basis for continuing jurisdiction, the first sentence of
Family maintenance services are designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation in order to prevent separation of children from their families. Services may be extended in six-month increments if it can be shown that the objective of the service plan can be achieved within the extended time periods. Unlike family reunification services, nothing in the
agency decided to make father Armando‘s physical custodian. There was never a hearing or court order changing Armando‘s physical custody from mother to father until the
When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make exit orders regarding custody and visitation. These orders become part of any family court proceeding concerning the same child and will remain in effect until they are modified or terminated by the family court. The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the juvenile court аnd may not be delegated to nonjudicial officials or private parties, including the parents themselves. (In re A.C. (2011) 197 Cal.App.4th 796, 799; In re T.H. (2010) 190 Cal.App.4th 1119, 1122–1123.) The rule of nondelegation applies to exit orders issued when the dependency jurisdiction is terminated. (In re Chantal S., supra, 13 Cal.4th at pp. 213-214; In re A.C., supra, at p. 799.)
Mother‘s Standing and the Relevancy of Issues She Raised
Although the agency contends mother has misstated the issue before us as standing, this point is not supported by the record. Multiple times during the brief
Mother‘s counsel expressly stated mother wanted a contested hearing. Mother‘s counsel further argued mother was challenging the dismissal of the dependency, Armando‘s placement, and Armando‘s need for more services. Read in context, the initial statеment by counsel to the court was mother‘s counsel‘s explanation to mother and the court concerning the agency‘s position. It was not a concession by mother‘s counsel that his client did not have standing. It is clear from counsel‘s further statements he and mother sought a contested
Mоther contends she had standing to raise the issues in a contested evidentiary hearing of whether the juvenile court should (1) retain its dependency jurisdiction, (2) grant mother Armando‘s physical custody, and (3) provide family maintenance services to Armando. Chantal S. and Aurora P. support mother‘s contention she has a right to have an evidentiary hearing on these points. Although Aurora P. clearly establishes mother‘s right to challenge the agency‘s recommendation to dismiss dependency jurisdiction, it further establishes mother bears the burden of proof on that issue because the statutory presumption is for termination of the dependency action. (In re Aurora P., supra, 241 Cal.App.4th at pp. 1154-1155, 1158-1163; In re Chantal S., supra, 13 Cal.4th 196.)
Chantal S. and Aurora P. also stand for the proposition mother can challenge the agency‘s recommended exit orders. If mother has the right to a hearing on the juvenile court‘s jurisdiction and the exit orders it issues, she undeniably has standing to raise these matters in a contested
The agency argues the issues mother raises were outside the scope of a
In Elaine E. a dependency proceeding was brought on behalf of three minors because a father had sexually molested his adopted daughter. Although the mother was awarded physical custody of the children, the father was prohibited from contacting the minors except with probation department supervision. The department recommendation after years of dependency was to have the action dismissed. The father sought an order from the juvenile court permitting him some sort of contact with the children. (Elaine E., supra, 221 Cal.App.3d at p. 812.) The juvenile court, however, would not permit a hearing at the
The agency relies on Elaine E. for the proposition that mother‘s contentions were not properly before the juvenile court. Unlike the father in Elaine E. who had no evidentiary showing to make to the court, mother sought to present evidence on all of the issues she raised at the hearing. Another distinguishing procedural difference between this case and Elaine E. is that there was a hearing changing custody in Elaine E., whereas here there was no court hearing on the issue of Armando‘s custody. The agency summarily changed Armando‘s custody to father and mother never had a judicial determination on this issue.
Other courts have distinguished and declined to follow Elaine E., finding issues related to custody and visitation are relevant to exit orders pursuant to
The agency continues its challenge to the relevancy of mother‘s contentions, arguing mother‘s arguments concerning standing misstate the issue. The
In Sarah M., the mother challenged the dismissal of the dependency action because she sought to continue the juvenile court‘s jurisdiction in order for the parents to receive conjoint therapy through child protective services. (In re Sarah M., supra, 233 Cal.App.3d at pp. 1499–1500.) This court noted the issue of conjoint therapy was not a cry for continued supervision by the court through a dependency action, but a plea for financial aid. We rejected this as a basis for the juvenile court сontinuing its jurisdiction, noting the evidence showed the minor was no longer at risk. (Id. at p. 1500.)
One holding in Sarah M. was that the juvenile court did not have to issue a visitation order. (In re Sarah M., supra, 233 Cal.App.3d at pp. 1500-1501.) Chantal S. rejected that argument, expressly overruling Sarah M. on that point. The Supreme Court in Chantal S. further explained
Furthermore, as later cases such as In re J.T., supra, 228 Cal.App.4th 953 have explained, the statutory scheme of the dependency law differs from family law because juvenile dependency courts are charged with making orders consistent with the best interests of the child. It was error for the juvenile court to effectively punt and delegate to family court the issues concerning Armando‘s custody and his need for additional services, services Armando may be entitled to even after the juvenile court terminates its dependency jurisdiction.
Chantal S., Aurora P., and J.T., are well reasoned; we adopt their holdings and apply them here. Contrary to the agency‘s argument on appeal, the juvenile court did not follow the precepts of Aurora P. In fact, the juvenile
Failure to Hold Contested Hearing
The agency finally argues any error in the juvenile court‘s order is harmless. The agency marshals the evidence in the social workers’ reports to support its conclusions. The flaw in the аgency‘s argument is the absence of potential evidence to the contrary that could have been developed only in a contested hearing. Mother sought a contested
We therefore decline the agency‘s invitation to review the record for harmless error where there is a void in the evidence created by the juvenile court‘s failure to have a contested hearing. Due process includes the right to be heard, adduce testimоny from witnesses, and to cross-examine and confront witnesses. (In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 18.) These procedures were not followed in this
DISPOSITION
The orders of the juvenile court dismissing the dependency action as well as denying mother a contested evidentiary hearing on the issues of the juvenile court‘s jurisdiction, Armando‘s custody, and further рotential services for Armando are reversed. The case is remanded for a contested
Levy, Acting P. J., and Poochigian, J., concurred.
PEÑA, J.
Notes
In In re Sarah M. (1991) 233 Cal.App.3d 1486, 1493, disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 204, this court held
Sarah M. is distinguishable from this case because mother initially kept custody of Armando, he was later tеmporarily removed from her custody to live in a group home to provide him with services to control his behavior, and then placed back with mother before the