In re V.R. CA2/5 ( 2014 )

Filed 3/11/14 In re V.R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re V.R., et al., Persons Coming Under B249100
the Juvenile Court Law. (Los Angeles County Super. Ct.
No. CK90004)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Valerie
Skeba, Juvenile Court Referee. Affirmed.
Law Office of Lisa A. Raneri and Lisa A. Raneri, under appointment by the Court
of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Peter Ferrera, Senior Deputy County Counsel, for Plaintiff and Respondent.
________________________________
L.G (father) appeals from a March 29, 2013 exit order reducing father’s monitored
visitation from three hours per week to two hours per month. Father contends he did not
receive notice that the court might reduce visitation when it terminated jurisdiction.
Father also contends that an addendum to the exit order erroneously states that father’s
visits must be supervised because he had not made substantial progress in court-ordered
programs, even though the court never ordered him to participate in those programs. We
conclude father forfeited the issue of notice because his counsel appeared and did not
object to the adequacy of notice. We further conclude the addendum did not constitute an
abuse of discretion, and any error in the addendum is harmless.
FACTS
In January 2012, the Department of Children and Family Services (Department)
took four-year-old V.R. and two-year-old D.R. into protective custody and filed a petition
alleging the children were at substantial risk of neglect under Welfare and Institutions
Code section 300, subdivisions (b) and (j).1 The Department found the children living
with mother in unsanitary and unhygenic conditions; they had rashes with open wounds
and scabs on their bodies from eczema, chicken pox, or bed bugs; and V.R’s teeth were
decaying and broken. Father had only learned the children were his about six months
earlier and expressed concern that mother was using drugs and could not adequately care
for the children. At the time the petition was filed, the Department was unaware that
father had two other dependency cases involving sustained counts regarding father’s
emotional instability, domestic violence, criminal history, diagnosis of bipolar disorder,
and refusal to take medication. The court sustained allegations relating to mother’s
history of drug use and her neglect of the children and ordered mother to participate in
drug rehabilitation and a 12-step program, as well as parenting classes and mental health
1
All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
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counseling. It also ordered parenting education classes for father, and individual
counseling for the children if helpful. The court placed the children with father and
granted mother monitored visitation.
On June 5, 2012, the Department advised the court for the first time that father had
two open dependency cases involving children by different mothers. One case involved
sustained allegations that father acted violently towards the mother in that case and
demonstrated emotional problems that rendered him unable to care for the children,
endangering the children’s physical and emotional health. The second case involved
sustained allegations that father’s failure to take medications after being diagnosed as
bipolar placed the children at risk. The Department’s report also raised concerns based
on statements and actions by father in the current dependency proceeding. Father
repeatedly called the social worker claiming he would not allow visits with mother, and
then called back to apologize for his behavior and agree to visitation. He believed that
mother did not deserve the children. He felt that mother was out to get him and had told
people he was a child molester. On one occasion, he cursed a passer-by while he was on
the phone with the social worker. The social worker asked him to stop because the
children were with him, but he continued. He later called back to apologize and said he
would take an anger management class if needed to satisfy the social worker. He claimed
mother had broken his car window because witnesses saw a “skinny female.” He later
apologized saying the suspect was in fact a skinny male, but he felt the need to accuse
mother because he was angry with her.
Between June and September, mother was fully compliant with the court’s orders
and was successful in all her programs. She attended drug rehabilitation, parenting
classes, and mental health counseling. She also consistently tested negative for drugs.
Her visits with the children went well, and she sought unmonitored visitation, which
father refused to allow. At a hearing on June 13, 2012, the court granted mother’s section
388 petition seeking unmonitored visits with the children. Based on the information
contained in the Department’s June 5, 2012 report, the court suggested the Department
file a section 388 petition if it wanted the court to order anger management classes, but
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opined that a section 387 petition (to remove the children from father) may be warranted.
Father began receiving family preservation services on June 25, 2012.
By September, mother remained complaint with all court orders and was close to
obtaining her own housing through a Section 8 housing program. The Department
reported on September 4, 2012, that father completed a parenting class in July and was
taking classes in anger management. However, father’s erratic and accusatory behavior
towards mother led the Department to question whether father should retain primary
physical custody of the children. The Department recommended placing children with
mother after they confirmed that mother had a suitable residence. On September 25,
2012, the court adopted the Department’s recommendation, placing children in “home of
parent,” giving mother primary physical custody and father visitation with the children
every other weekend, and one evening on alternate weekends. The court ordered both
parents to comply with family preservation services.
On September 26, 2012, just one day after the court made its order, father told a
social worker he would not be following the visitation order, and that the only way to
protect mother from going back to partying was if she had the children. On October 1,
2012, father opted out of the family preservation program, stating he did not want to be
any part of the Department’s decision to let the children live with mother. Father became
increasingly suspicious and paranoid during the month of October. He followed mother’s
cousin to learn where mother lived and accused the Department and mother of lying to
him about the children’s whereabouts. Based on father’s increasing mental and
emotional instability, and on the fact that father’s reunification services had been
discontinued in two earlier dependency cases, the Department filed a subsequent petition
under section 342, alleging the children were at risk as the result of father’s mental and
emotional problems and failure to take his psychotropic medication as prescribed. On
October 11, 2012, the court detained the children from father, placed them with mother,
and granted father monitored visitation for a minimum of three hours per week. The
court ordered the Department to provide father referrals to individual counseling and
domestic violence counseling, and father to have a mental health evaluation.
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In late October 2012, father was extremely agitated, telling the social worker the
children had been illegally removed from his care, that he had fired the previous social
worker on the case and hired a private investigator to prove mother was still using illegal
drugs. He let the social worker know he had a lot of power in the gang community,
waiting for his orders to take revenge. When the social worker asked father to explain
what he meant, he did not elaborate and said he was not posing a threat. During a
monitored visit on October 29, 2012, the social worker reminded father the court wanted
him to have a mental health evaluation, but father said he was not interested.
A therapist interviewed and evaluated father on October 30, 2012, noting that
father’s mood was suspicious and anxious, his speech rambling, his affect exaggerated,
his judgment inappropriate, and he had poor impulse control, impaired concentration, and
inadequate insight. The therapist diagnosed father with Paranoid Personality Disorder
and Schizotypal Personality Disorder. She expressed concern regarding father’s mental
health and questioned father’s capacity to safely care for the children. “With the paranoia
that [father] displays and the anger that he has associated with it[,] there is a concern and
a high risk that [father] may be impulsive and unpredictable in his actions.” The therapist
opined that father felt “conspired against” and “may not have the best interest of the
children in mind in an effort to maintain self-preservation.” The therapist recommended
a more formal evaluation under Evidence Code section 730, an evaluation for psychiatric
medication, and that father attend therapy and classes in anger management and
parenting.
Father admitted on October 31, 2012, that he had taken Depakote for four years
for bipolar disorder, but he stopped taking the medication because it interfered with his
ability to function on a daily basis and felt much better when he was off the medication.
Father only visited the children once between November 2012 and March 2013.
The visit went well, but the Department was unable to schedule any other visits. During
the same time frame, father complained mother was neglecting the children, mother and
the children were living in unsanitary conditions, and the children were losing weight.
When the social worker explained the Department had visited mother and had not seen
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evidence supporting his claims, he responded in a way that indicated he believed there
was a conspiracy to protect mother. When the social worker told father in January 2013
that the Department could not provide him with information about mother’s cousin’s
fingerprint results, he became highly agitated and cursed the social worker, verbally
insulting her.
On March 22, 2013, the Department mailed to father a notice of hearing and the
Department’s report recommending the court terminate jurisdiction and grant custody of
the children to mother and monitored visits for father. The recommendation did not
specify the frequency of father’s monitored visits. The notice indicated the social worker
recommended “[a] change in orders, services, placement, custody or status (specify):
Termination of Jurisdiction.”
Mother and the children were present at the March 26, 2013 hearing, but father did
not attend. His attorney was present and did not request a continuance. The court called
the matter and stated: “The recommendation is to terminate jurisdiction with a family
law order.” The court asked if anyone wished to be heard, and father’s counsel stated:
“My client objects. I haven’t heard from him, but it appears from the documents my
client objects.” The court then asked mother’s counsel to submit a family law order by
Friday, giving legal and physical custody of the children to mother, with monitored visits
of two hours per month for father. Father’s counsel responded, “Two hours?” but did not
make any objection.
On March 29, 2013, the court received the order. Father’s counsel objected
without specifying a basis for the objection, stating: “I have not heard from my client. I
would on the record go ahead and object, but I do -- I have reviewed the family law
order, and it does comport with the judge’s orders and what the record reflects. We do
object to the fact of the family law order.” The court terminated jurisdiction and issued
exit orders granting mother physical custody of the children and ordering two hours of
supervised visitation per month for father.
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DISCUSSION
We review a dependency court’s decision to terminate jurisdiction and issue
custody and visitation orders under section 362.4 for abuse of discretion. (Bridget A. v.
Superior Court (2007) 148 Cal. App. 4th 285, 300.) When a determination is “committed
to the sound discretion of the juvenile court, . . . the trial court’s ruling should not be
disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] As
one court has stated, when a court has made a custody determination in a dependency
proceeding, ‘“a reviewing court 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 [citations].”’ [Citations.] And we have recently warned: ‘The
appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial court.”’
[Citations.]” (In re Stephanie M. (1994) 7 Cal. 4th 295, 318-319.) Where substantial
evidence supports the order, there is no abuse of discretion. (In re Daniel C. H. (1990)
220 Cal. App. 3d 814, 839.) “It is not our function to weigh the credibility of the
witnesses or resolve conflicts in the evidence. [Citation.] Rather we must indulge in all
reasonable inferences to support the findings of the juvenile court and must review the
record in the light most favorable to the juvenile court’s orders.” (Ibid.)
Section 362.4 provides in pertinent part: “When the juvenile court terminates its
jurisdiction over a . . . dependent child[,] and . . . an order has been entered with regard to
the custody of that minor, the juvenile court on its own motion, may issue . . . an order
determining the custody of, or visitation with, the child. [¶] Any order issued pursuant to
this section shall continue until modified or terminated by a subsequent order of the
superior court. The order of the juvenile court shall be filed in [the family’s proceeding
in family court] at the time the juvenile court terminates its jurisdiction over the minor,
and shall become a part thereof.”
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Father Forfeited Claim of Error By Failing to Make a Specific Objection about
Lack of Notice
Father does not contend the court’s decision to permit monitored visitation for two
hours per month is not supported by the evidence. His sole contention is that he did not
receive notice the court might reduce his visitation.
A claim of error is forfeited on appeal if it is not raised in the trial court. (In re
S.B. (2004) 32 Cal. 4th 1287, 1293.) “The purpose of this rule is to encourage parties to
bring errors to the attention of the trial court, so that they may be corrected.” (Ibid.) A
claim of error is also forfeited if the objection raised is not specific enough to give the
lower court an opportunity to correct the error. (In re E.A. (2012) 209 Cal. App. 4th 787.)
“General objections are insufficient to preserve issues for review. [Citation.] The
objection must state the ground or grounds upon which the objection is based.
[Citation.].” (Id. at p. 790.) The rationale behind the forfeiture rule is that it would be
“inappropriate to allow a party not to object to an error of which the party is or should be
aware[.]” (In re Dakota S. (2000) 85 Cal. App. 4th 494, 501.) The reviewing court retains
discretion to consider questions of constitutional import, even where the parties have
forfeited their right to raise the issue on appeal. (In re Spencer S. (2009) 176 Cal. App. 4th
1315, 1323 (In re Spencer S.).)
Father’s counsel never specified a basis for father’s objection and did not object to
the adequacy of the notice mailed to father. At the March 26, 2013 hearing, counsel
simply stated: “My client objects. I haven’t heard from him, but it appears from the
documents my client objects.” At the March 29, 2013 hearing, counsel conceded the exit
order comported with the judge’s orders and the record, and simply stated: “I would on
the record go ahead and object.” Again, counsel offered no basis for the objection. Such
attempts to preserve unidentified issues for appellate review are inadequate. In In re
E.A., supra, 209 Cal. App. 4th 787, the father’s counsel objected to all of the orders
announced by the court, including that visitation would take place after the father was
released from incarceration. The objection was inadequate to preserve a question of error
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on appeal because counsel did not specify the court had failed to make a finding of
detriment before denying visitation. Had counsel done so, the court could have made the
requisite findings and avoided the need for the appeal. “Thus, counsel is asking us to
reverse a perfectly sound decision over an alleged defect that could have been easily
cured, if raised in a timely fashion.” (Id. at p. 791.) Here too, had counsel objected that
father had not received notice that visitation would be reduced, the court could have
either continued the hearing and ordered such notice or ordered continued visitation
consistent with its earlier orders. The lack of a specific basis for counsel’s objection
prevented the court from taking corrective action.
Father contends the court retains discretion to consider whether he was given
adequate notice because the issue is of constitutional dimension and of great public
interest. (In re Spencer S., supra, 176 Cal.App.4th at p. 1323.) We do not find a
violation of constitutional dimension, and decline to further address the merits of the
contention.
Any Error in the Addendum to the Exit Order is Not Prejudicial
Father additionally asks this court to remand the case with directions to modify or
strike a one-page addendum to the exit order. The addendum is a preprinted form
entitled, “Reasons for No or Supervised Visitation.” It states father “has not made
substantial progress regarding the following court-ordered programs:” The boxes for
“domestic violence,” “parenting classes,” and “other:” are checked, and after “other:” the
text reads: “Father is to have a mental health evaluation and participate in individual
counseling.” Father contends the court was misinformed regarding material facts and
therefore failed to exercise its discretion when it adopted the exit order. Father
completed a parenting class in July 2012 and underwent a mental health evaluation on
October 30, 2012. Father acknowledges the court ordered him to participate in family
preservation services, but he argues the court never specified which programs or services
he was required to participate in. Father contends as a result of the court’s failure to
9
specify what services were required, there is no substantial evidence the court ordered
him to participate in domestic violence counseling, individual counseling, or a mental
health assessment as stated in the addendum. He further contends that he is prejudiced by
the court’s error because he will not be able to obtain unmonitored visitation with the
children unless he completes the programs listed in the addendum.
We find substantial evidence in the record to support the addendum. On
September 25, 2012, the court ordered father to comply with family preservation
services, but father opted out of such services on October 1, 2012, telling the social
worker that he saw no reason to continue such services, since he was not going to be
seeing his children until they are returned to his full custody. On October 11, 2012, the
court ordered father to have a mental health evaluation and ordered the Department to
provide referrals to individual and domestic violence counseling. Father did have a
mental health evaluation on October 30, 2012, but that evaluation resulted in a
recommendation that father undergo additional evaluations under Evidence Code section
730 and to determine whether he needed psychiatric medications. The evaluator also
recommended individual therapy, anger management classes, and parenting classes.
Other than the fact that he submitted to the October 30, 2012 mental health
evaluation, there is no evidence in the record father availed himself of any of the
recommended services or referrals after renouncing the need for any such services on
October 1, 2012. The lack of a formal and specific court order directing father to
participate in such services does not establish the court improperly considered father’s
lack of substantial progress in such services as a factor in its visitation order. The
Department points out the purpose of the addendum is for the court to convey its
concerns to the family law court and explain the reasons behind its order for supervised
visitation. Although it might have been more accurate for the dependency court to
explain the basis for its decision in more detail, to convey the fact that the further
evaluations, counseling, and classes were recommended, rather than court-ordered, we do
not believe the oversight constitutes an abuse of discretion.
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Even if we were to find an abuse of discretion, father has not shown prejudice.
Father claims prejudice based on the fact that he will probably not be able to obtain
unmonitored visitation with the children unless he completes the programs listed in the
addendum. However, father does not contend the court’s order for monitored visitation
lacks support in the record. Father exhibited emotional instability and has a history of
unpredictable behavior that warrants monitored visitation until he can demonstrate that
his circumstances have changed. It is reasonable to infer that mental health evaluations,
counseling, and domestic violence and parenting classes are necessary to warrant any
change to the visitation order. If father can demonstrate that his circumstances have
changed, the family court has discretion to modify the visitation order. (§302, subd. (d).)
DISPOSITION
The order is affirmed.
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
MINK, J.*
* Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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