K.D. v.Super. Ct. CA2/1 ( 2013 )

Filed 12/11/13 K.D. v.Super. Ct. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
K.D., B249640
Petitioner, (Los Angeles County
Super. Ct. No. CK97263)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
L.D.,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for extraordinary writ. Marguerite D.
Downing, Judge. Petition granted.
K.D., in pro. per., for Petitioner.
No appearance for Respondent.
L.D., in pro. per, for Real Party in Interest.
_______________
In her petition for extraordinary writ, pro. per. K.D. (Mother) challenges a June
26, 2013 order of the juvenile court (Hon. Marguerite D. Downing) granting L.D.’s
(Father) vacation request for minors Km.D. and S.D. to visit a paternal aunt in Senegal
for two months. We grant the petition because the juvenile court abused its discretion in
granting Father’s walk-on vacation request because it appears that Mother did not receive
notice of the June 26, 2013 walk-on request, was not in attendance at the hearing, and her
counsel was not given an opportunity to contact her.
BACKGROUND
H.D. is 11 years old, Km.D. is 9 years old, S.D. is 8 years old, Is.D. is 4 years old,
and Il.D. is 3 years old.
Mother and Father are going through an acrimonious divorce. Since September
2012, Father has not resided in the home. The family currently has an open case with the
Family Law Court.
On January 9, 2013, the Department of Children and Family Services (DCFS)
filed a Welfare and Institutions Code1 section 300, subdivisions (a), (b) and (j) petition
which alleged that on January 2, 2013, Father physically abused H.D. by striking the
child’s body with a metal stick and belt, inflicting multiple linear/loop marks and bruises
to the child’s buttocks and legs. The petition further alleged that on prior occasions in
2012, Father physically abused Km.D. by striking the child’s body with belts, metal
sticks and his hands.
At the detention hearing, the children were released to Mother. Father was
granted monitored visitation.
On January 28, 2013, the juvenile court issued a stay-away order indicating that
Father must stay away from Mother and the family home.
1 Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
2
On March 25, 2013, after a contested jurisdiction/disposition hearing, the juvenile
court sustained portions of the petition and declared the children dependents of the
juvenile court. The children would remain with Mother, and Father would have
monitored visitation. The juvenile court issued a case plan for Mother and Father.
Moreover, the children cannot be taken out of the state of California without permission
of the juvenile court and there is to be no corporal punishment. The stay-away order
remains in effect, but Father can collect his belongings from the house.
On April 24, 2013, Father filed a notice of appeal.
On May 21, 2013, at a hearing at which Mother and Father were in attendance,
Father requested permission for the children Km.D. and S.D. to take a trip to Senegal,
West Africa to visit the paternal aunt. The juvenile court stated: “I can’t give permission
for a scheduled — for a trip that has not been decided. Historically I have no problem
with children taking visits as long as all of the proper documents are provided and the
Department is given notice. [¶] Once that happens, the Department will walk it on for
me to give the okay. But from this vantage point, no new information — I don’t
generally have a problem with children having the opportunity to see the world. So I just
need notice.” Mother’s counsel stated that Mother objects to the trip to Senegal. The
juvenile court stated that Mother would have an opportunity to object when the court gets
information on the trip.
On June 24, 2013, Father’s counsel submitted to DCFS a walk-on request for June
26, 2013. The request basically concerned visitation, but stated at the end, “Finally,
father would like to send his children [S.] and [Km.] to Senegal to visit their paternal
aunt, Ayisha D. The children will be staying with Ayisha D. at her residence in Senegal.
Address to be provided at Walk-on hearing. Her phone number is 323- . . . . Father has
attached the Delta Air Lines itinerary for the flight; [leave July 1st on a flight from LAX
to JFK and JFK to Dakar, Senegal, and return on August 30th from Dakar, Senegal to
JFK and JFK to LAX]” The walk-on request further stated, “I declare as follows under
penalty of perjury: [¶] 1. Notice was given to all counsel, prior to the requested hearing
date. [¶] 2. A copy of this request has been provided to all counsel.”
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According to the minute order and the reporter’s transcript, on June 26, 2013, the
juvenile court heard Father’s walk-on vacation request. Mother was not in attendance at
the hearing. Her counsel requested an opportunity to speak to her client and get her into
court. Rather than respond to counsel, the juvenile court continued with the hearing.
Counsel stated that Mother objects to the children going on vacation in Senegal with
relatives who have not been assessed by DCFS. Counsel further stated: “She is not
comfortable with the children going so far away with relatives that the children do not
have a close relationship with, and relatives that she does not know very well and that
have not been investigated or found to be appropriate by the Department of Children and
Family Services. [¶] If the court, over Mother’s objection, authorized the vacation
request, I would ask the court make it clear that Father is not to accompany the children
on the vacation to Senegal. He’s not to be present at any time during that vacation.” S.D.
did not wish to go to Senegal. The Department objected to the vacation request.
After the hearing, the juvenile court issued the following minute order: “Matter is
walked on calendar by Father’s counsel for further orders of the court. [¶] The court
continues the matter [the visitation issue] at the request of DCFS for DCFS to prepare a
response to Father’s walk on request. [¶] The court grants the vacation request of Father
for minors [Km.D.] and [S.D.], to visit paternal aunt in Senegal. Request is on the
condition Father provide DCFS with itinerary and address/telephone number of paternal
aunt. The other condition of the vacation request is that minors have appropriate
passports to return to the U.S. [¶] The court orders that Father is not to accompany
minors on vacation to Senegal.”
In her petition, Mother states she would have objected to the juvenile court’s order
and argued that the children were going to be involved in a summer program with their
new school that they are transitioning to at the beginning of August. Mother also stated
she would have also argued she is concerned and scared that the children would not
return and would be kept against their will after two months in Senegal. Father has stated
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to Mother in the past that he would take the children to Senegal since he is a Senegalese
citizen2 and would live there permanently and this will defy the juvenile court’s order.
DISCUSSION
If a juvenile court is granted discretion to decide an issue, its decision should not
be disturbed on appeal absent a clear abuse of discretion. (In re Jasmon O. (1994) 8
Cal. 4th 398, 415.) A court abuses its discretion when it makes a determination that is
“‘“arbitrary, capricious, or patently absurd.”’” (In re Mark V. (1986) 177 Cal. App. 3d
754, 759, quoting In re Geoffrey G. (1979) 98 Cal. App. 3d 412, 421.)
We conclude that the juvenile court abused its discretion in granting Father’s
vacation request because Mother was not advised of the June 26, 2013 hearing and was
not in attendance at the hearing.
The juvenile court should have permitted Mother’s counsel to speak to Mother and
bring her to court. If Mother had been in attendance, the juvenile court would have heard
her concerns. The juvenile court should have denied Father’s vacation request.
DISPOSITION
The petition for extraordinary writ is granted. The temporary stay order is
vacated.
NOT TO BE PUBLISHED.
THE COURT:
____________________ _____________________ _____________________
MALLANO, P. J. CHANEY, J. JOHNSON, J.
2 Father was born in Los Angeles but also has Senegalese citizenship because of his
father.
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