In re K.H. CA2/5 ( 2013 )

Filed 11/20/13 In re K.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 K.H., a Person Coming Under the B247467
Juvenile Court Law. (Los Angeles County Super. Ct.
No. CK92721)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHAEL H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Rudolph A.
Diaz, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
_______________________________
Father Michael H. appeals from an exit order limiting his contact with his son
K.H. to monitored visits pursuant to Welfare and Institutions Code section 362.4.1 He
contends the Los Angeles County Department of Children and Family Services
(Department) failed to give him adequate notice of its recommendation that his visits
with his son be supervised, and that the dependency court abused its discretion when it
terminated jurisdiction over the matter with a family law order that restricted his
visitation rights unfairly. We affirm.
FACTS
The Department filed its original dependency petition in this case on March 26,
2012, alleging under subdivision (a) of section 300 that K. was at risk of harm due to the
parents’ history of engaging in violent confrontations in his presence. The Department
identified a specific incident on March 20, 2012, during which father was alleged to have
struck mother in the face with his fist. It also alleged prior incidents of domestic
violence. The same allegations were cited as the basis for a separate count alleging K.
was a child described by subdivision (b) of section 300. Father denied the prior incidents
of domestic violence. Father was incarcerated at the time the Department filed its
petition.
On March 26, 2012, the dependency court entered a temporary restraining order
prohibiting father from contact with mother or K. but permitting supervised visitation.
The court also made a prima facie finding on the petition and ordered K. detained from
father, while ordering that K. remain in the home.
On April 23, 2012, a jurisdiction/disposition report was filed, stating among other
things, that father was enrolled in a 52-week domestic violence course.
1All statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2
On May 30, 2012, the dependency court entered a permanent restraining order
against father, requiring him to stay at least 100 yards away from mother and K., except
for during supervised visitation. The court made a true finding on the subdivision (b)
allegation of the petition and removed K. from father and ordered him placed with
mother. It dismissed the allegations under subdivision (a) of section 300. The court
ordered reunification services and monitored visitation for father.
On August 22, 2012, the social worker assigned to the case spoke with Dr. Alice
Harris at Parents of Watts Working to confirm whether father was enrolled in parenting
classes there. Father was not enrolled, but Dr. Harris assured the social worker that father
could enroll and Parents of Watts Working would waive the class fee. The social worker
called father and relayed the information, adding that he would still need to participate in
individual counseling with a licensed therapist. Father asked if he could complete his
therapy with Parents of Watts Working. The social worker responded that it was unlikely
Parents of Watts Working would waive that fee because it had already waived the
parenting class fee.
On August 27, 2012, the social worker contacted several agencies to obtain
individual counseling for father that was either free or available for a reasonable fee. She
selected Didi Hirsch, which charged $10, and Family Source at Watts Labor Community
Actions Committee, who would provide father therapy for free, as the most appropriate
options for father. Both agencies indicated father should contact them directly. The
social worker spoke with father later that day to discuss his options. Father expressed an
interest in obtaining counseling at Parents of Watts Working but was under the
impression the social worker had told Parents of Watts Working that he could not
complete his individual counseling there. The social worker stated that he could, in fact,
receive counseling at Parents of Watts Working if Dr. Harris was a licensed therapist.
She urged father to contact the other two agencies she found for him that day, so that he
could begin his sessions as soon as possible. After speaking with father, the social
worker attempted to contact Parents of Watts Working by telephone four times without
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success. Finally, she wrote an e-mail to the agency stating father could complete his
counseling there as long as Dr. Harris was a licensed therapist.
On August 28, 2012, the social worker was able to contact Ms. Roberta Wilkerson
at Parents of Watts Working and emphasized to her that father could complete his
counseling there as long as Dr. Harris was a licensed therapist. Father was in Ms.
Wilkerson’s office, and she repeated the information to him. The social worker then
spoke to father personally and reiterated the information.
Father informed the social worker that he was participating in individual
counseling with Dr. Harris on September 11, 2012.
On November 1, 2012, the Department liberalized father’s visitation to allow
unmonitored visits, with the condition that father must continue to participate in the
court-ordered services.
On December 4, 2012, both parents appeared for a review hearing and requested
the matter be set for a contest. K.’s counsel raised the issue of whether father’s therapist
was properly licensed. The dependency court ordered the Department to investigate this
issue and report back to it by February 1, 2013.
On February 1, 2013, the Department reported that Dr. Harris was not a licensed
therapist.
On February 7, 2013, the Department further explained in its report that Dr.
Harris’s title of “Dr.” was merely honorary. Based on this information, the Department
changed its recommendation and asked the dependency court to issue an exit order
providing for monitored visitation for father. Over father’s objection, the court
terminated jurisdiction and ordered father to continue to have monitored visitation with
K.
Father timely appealed.
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DISCUSSION
We agree father did not forfeit his due process claim that he was not given
adequate notice of the Department’s change of position prior to the hearing. Father’s
counsel specifically stated: “This court is about notice. This court is about due process.”
He argued the Department was “changing the rules at the end of the game.” The
dependency court addressed the issue, essentially finding that father had notice there was
a potential problem with his compliance that could affect his visitation rights: “Counsel,
I am going to follow the recommendation, father must have known who [Dr. Harris] is.
She’s a community activist, and she’s not a doctor. Somebody gave her this honorary
doctorate title, and she’s a sweet lady and that’s why they call her Sweet Alice, but she’s
not qualified, so I’m going to terminate the matter[.]”
The facts support the dependency court’s finding. Father was made aware that he
was required to obtain individual counseling from a licensed therapist multiple times
several months prior to the hearing. The social worker informed him that he could
participate in counseling at Parents of Watts Working on the condition that Dr. Harris
was a licensed therapist. Father’s visitation with K. was liberalized on the condition he
continue to engage in court-ordered services. At the review hearing, K.’s counsel raised
the issue of whether Dr. Harris was a licensed therapist, and the court ordered the
Department to investigate the issue and report back. The report stated that Dr. Harris was
not credentialed. Father was aware his compliance with the court order was in question,
and his unsupervised visits with K. were dependent on his compliance. Father knew the
Department would likely change its position based on the information that Dr. Harris was
not credentialed. In light of this evidence, the court’s finding that notice was adequate
was not error.
Even if the dependency court’s finding was in error, however, father’s contention
would fail because any error was harmless. (See In re James F. (2008) 42 Cal.4th 901,
904-905 [dependency court’s appointment of a guardian ad litem for a mentally
incompetent father without conducting an appropriate hearing held harmless error]; In re
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A.D. (2011) 196 Cal.App.4th 1319, 1327 [failure of the social services agency to provide
a mother with the statutorily mandated notice of a hearing at which the dependency court
terminated her reunification services and ordered long-term foster care held harmless
error].) Here, prejudice can be determined without “‘a speculative inquiry into what
might have occurred in an alternate universe.’ [Citation.]” (In re James F., supra, at
p. 914.) The Department’s recommendation was dependent on father’s compliance with
the court’s orders, and father makes no argument that he was in compliance with those
orders or that he would have been had the Department changed its recommendation
earlier. The outcome of the proceeding has not been affected, so reversal is not required.
(Id. at p. 918.)
Finally, the dependency court did not abuse its discretion in making its exit order.
(Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.) “[T]he ultimate
consideration in a dependency proceeding is the welfare of the child [citations] . . . .” (In
re James R., supra, 42 Cal.4th at p. 915.) Father argues that he was predominantly
compliant with the dependency court’s orders, exhibiting commitment, and making
progress in his therapy and individual classes. While this may be true, it was not
unreasonable for the dependency court to require that his progress be evaluated by
someone who was trained and licensed to conduct therapy sessions and make such
evaluations. Dr. Harris was not so qualified. Moreover, the primary focus of the court’s
inquiry was not on father, it was on K.’s best interests. Given father’s prior history of
violence, the court did not abuse its discretion in ordering that a licensed professional
evaluate father’s ability to parent.
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DISPOSITION
The order is affirmed.
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
KUMAR, J.*
* 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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