In re A.T. CA2/8 ( 2014 )

Filed 6/24/14 In re A.T. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.T., Person Coming Under the B250532
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. CK74200)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Anthony
Trendacosta, Juvenile Court Referee. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Tracey F. Dodds, Deputy County Counsel for Respondent.
__________________________
Mother N.F. appeals from the juvenile court’s exit orders regarding visitation with
daughter A.T. after the court terminated its dependency jurisdiction and gave father K.T.
sole legal and physical custody of the child. We affirm those orders.
FACTS AND PROCEDURAL HISTORY
In November 2012 we affirmed a juvenile court order placing seven-year-old A.T.
with her father after the court sustained an amended petition (Welf. & Inst. Code, § 300)
filed by the Los Angeles County Department of Children and Family Services (DCFS)
alleging that A.T. was a dependent of the court because mother had been coaching the
minor to falsely accuse father of sexually abusing her when in fact the abuse was
committed by mother’s nephew. (Los Angeles County Dept. of Children and Family
Services v. N.F. (Nov. 29, 2012) [nonpub. opn.].) The court had previously taken
jurisdiction of A.T. in 2008 after father was wrongly blamed for sexually abusing the
child, finding that A.T. had been a victim of sexual abuse, but that someone else in the
household had been the perpetrator.1
In May 2013 the juvenile court terminated jurisdiction over A.T. and placed her
with father, granting him sole legal and physical custody of the child. The court entered
exit orders regarding monitored visitation by mother that ordered mother to pay for the
costs of the monitor. The court did not specify the frequency and duration of her visits.
Mother contends the juvenile court erred because: (1) it cut her off when she tried
to argue at the hearing; (2) there was no showing she had the ability to pay for a monitor;
and (3) the order failed to specify how often she was allowed to visit the minor.2
1 This condensed version of the facts comes from our prior decision in this matter.
As for the facts that give rise to this appeal, we have distilled those to address the issues
raised by mother.
2 Mother does not contest the termination order, or the apparent basis for granting
father sole legal and physical custody of the minor: mother’s failure to cooperate with
DCFS; her apparent false statement that she discontinued therapy because her therapist
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DISCUSSION
1. The Court Did Not Stop Mother From Arguing the Exit Orders
Mother contends the juvenile court did not permit her to respond to the court’s
tentative ruling concerning visitation. She bases this on the following exchange:
“[MOTHER]: Okay, I wasn’t really done.
“[THE COURT]: Well, Ma’am, you’re done as far as the court’s concerned.
“[MOTHER]” Okay. Thank you.
“[THE COURT]: We’re back in open session. . . . The Court’s tentative from the
15th is the – will be the order.”
These comments must be placed in context with the events that preceded them.
When the hearing started, the court noted that mother had filed a request to renew a
restraining order against father. Although mother had counsel, the court allowed her to
argue the restraining order herself because mother applied for that order on her own
without the assistance of counsel. After hearing argument from the parties, the court
denied the request to renew the restraining order.
When the hearing started mother also said she wanted to bring a Marsden3 motion
to replace her lawyer. After the court denied mother’s request for a renewed restraining
order it went into closed session with mother and her lawyer so mother could argue her
Marsden motion. After the court denied that motion, counsel for the parties, along with
father, returned to the courtroom. As the trial court announced the presence of counsel
for DCFS, mother said, “Can I ask you a question, sir?” The trial court asked what the
was ill; her 2012 false accusation of sexual abuse by father, leading to an unnecessary
sexual assault exam of the minor; and the fact that even though the minor loved her
mother and wanted to live with her, she was also satisfied living with father, who by all
accounts was giving her proper care.
3 This was a reference to People v. Marsden (1970) 2 Cal.3d 118, which holds that
criminal defendants represented by appointed counsel may move to replace counsel if the
lawyer is not adequately representing them. Because parents have a statutory and due
process right to competent counsel, Marsden-type hearings are permitted in dependency
court. (In re M.P. (2013) 217 Cal.App.4th 441, 455.)
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question was, followed by mother’s statement that she was not really done, along with the
remainder of the exchange quoted above. This was followed by the trial court’s
statement that it “was back in open session.”
It appears to us that the juvenile court allowed mother to first argue regarding the
restraining order and her Marsden motion, after which it intended to conduct the hearing
on the termination and exit orders. Viewed in this context, mother’s request to ask a
question and her statement that she “wasn’t really done” indicate that mother wanted to
make further argument regarding the just-concluded Marsden hearing. Therefore, when
the court said that mother was “done as far as the court’s concerned,” and then said
“we’re back in open session,” it was nothing more than a statement that the court would
hear no more argument on the Marsden motion – it would have been improper in open
court – and would proceed to the termination and exit orders.
At that point, mother’s counsel was responsible for arguing on her behalf. When
the court said that its previous tentative would become the final order, mother said
“okay” while her counsel remained silent and made no objections to the court ruling
without argument or the introduction of evidence. We therefore deem the issue waived.
(In re Carrie W. (2003) 110 Cal.App.4th 746, 755.)
2. Mother Waived Her Challenges to the Visitation Order
A. The Frequency of Visitation
When a juvenile court terminates its jurisdiction over a dependent child, it can
make exit orders regarding custody and visitation. Those orders become part of any
family court proceeding concerning the same child and remain in effect until they are
terminated or modified by the family court. (In re T.H. (2010) 190 Cal.App.4th 1119,
1122-1123.) The court has the power to determine the right and extent of visitation by a
noncustodial parent in a dependency case, and may not delegate that power to nonjudicial
officers or private parties. (Id. at p. 1123.) A visitation order may delegate to a third
party the responsibility for managing the details of visits, including their time, place, and
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manner. (Ibid.) However, discretion to determine whether visitation will occur at all
may not be delegated. (Ibid.)
Mother contends the juvenile court improperly delegated her right to visit the
minor by failing to specify how often she was allowed to visit. We reject this contention
for two reasons. First, the court did not delegate that power to anyone. Instead, its order
was silent on the frequency of visitation. Second, in May 2012 the court ordered
visitation for mother of no less than two to three times a week, with visits to last two to
three hours. By virtue of minute orders stating that all prior orders remained in force and
effect, that visitation order was in effect up to and including the ultimate hearing on May
22, 2013. We believe the court intended to keep that order in place as part of its exit
order, subject to later modification by the family court.
Alternatively, we hold that mother waived her objection by failing to raise the
point during the hearing. (In re Carrie W., supra, 110 Cal.App.4th at p. 755.)
B. Order to Pay for Visitation Monitor
DCFS recommended that mother be allowed monitored visitation with the minor,
but said nothing about making mother pay for the monitor. Instead, the court announced
that requirement as part of its tentative ruling at the May 15, 2013 hearing. Mother
contends the juvenile court erred because there was no evidence she could afford to pay
for the monitor, or that a paid monitor was required for some special reason and would
afford the minor better supervision than would an unpaid monitor.
When the court announced its tentative, it told counsel to “be prepared on that
issue” for the May 22 hearing. Mother made no argument, and presented no evidence on
those issues in advance of or at the May 22 hearing. Instead, mother’s counsel remained
silent when the final ruling was announced. We therefore deem the issue waived.4 (In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.)
4 Mother remains free to seek modification of the visitation orders through the
family court.
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DISPOSITION
The juvenile court’s exit orders regarding visitation are affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P.J.
GRIMES, J.
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