In re T.S. ( 2020 )

Filed 7/21/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re T.S. et al., Persons B293453
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. DK24133AB)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
VACHESLAV S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, D. Zeke Zeidler, Judge. Reversed and
remanded.
Law Offices of Honey Kessler Amado, Honey Kessler
Amado and Nancy Rabin Brucker for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Kimberly Roura, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_______________________________________
Vacheslav S., father of now-10-year-old T.S. and six-year-
old Christian S., appeals the juvenile court’s orders terminating
jurisdiction over T.S. and Christian pursuant to Welfare and
Institutions Code section 364,1 granting sole legal and physical
custody to the children’s mother, Nataliya S., and granting
visitation to Vacheslav. On appeal Vacheslav contends the court
erred in denying his request for a contested evidentiary hearing
on custody and visitation. Vacheslav also argues the court’s
custody and visitation orders were not in the best interests of the
children and constituted an abuse of discretion.
FACTUAL AND PROCEDURAL BACKGROUND
1. Detention of T.S. and Christian
On July 16, 2017 police searched the family’s home in
connection with the arrest of T.S. and Christian’s stepfather,
Albert N.2 During the search police found a loaded handgun on a
shelf in the garage and eight ounces of cocaine in a purse in
Nataliya and Albert’s closet. The police referred the family to the
Los Angeles County Department of Children and Family Services
(Department) for investigation.
1 Statutory references are to this code.
2 Albert was arrested during execution of a search warrant
at an apartment used by a drug cartel. The police investigation
found Albert was a major figure in the cartel and trafficked
approximately 500 kilograms of cocaine per month.
2
A Department social worker interviewed Nataliya on
July 18, 2017. Nataliya claimed the cocaine did not belong to her
and speculated it may have belonged to her sister, who had
recently visited for Nataliya and Albert’s wedding. Nataliya said
she did not use illegal drugs and was willing to submit to drug
testing. As for the handgun found by the police, Nataliya said it
belonged to Albert’s brother, who had also been in town for the
wedding.
Nataliya informed the social worker she and T.S. had
emigrated to the United States from Russia in 2013, while she
was pregnant with Christian. She had never been married to
Vacheslav, who still resided in Russia. Nataliya met Albert
shortly after arriving in the United States, and they had been
married for one month. During an interview with the social
worker T.S. referred to Albert as “dad.”
On August 1, 2017 the Department filed a petition to
declare T.S. and Christian dependent children of the juvenile
court under section 300, subdivision (b)(1). The petition alleged
Nataliya placed the children in a dangerous home environment
by allowing a loaded handgun and narcotics to be within reach.
At the detention hearing on August 1, 2017 the court
ordered the children detained from Nataliya. Vacheslav did not
appear at the hearing because he had not yet been located by the
Department. Family reunification services and monitored
visitation were ordered for Nataliya.
2. The Jurisdiction/Disposition Report
After the detention hearing the children were placed with
their maternal grandmother. Nataliya had monitored visits with
the children on a regular basis. She continued to insist the
3
cocaine found in the house did not belong to her, and she denied
any knowledge of Albert’s drug-trafficking activity.
In interviews with the social worker Vacheslav said he had
last seen the children when they visited Russia in 2014. He had
some telephone contact with the children after that but had not
spoken to them in about a year. He said he had tried to see them
when he visited Los Angeles in 2014, but Nataliya would not
allow it. Vacheslav planned to attend the jurisdiction/disposition
hearing and intended to seek custody of the children and take
them to Russia.
On September 19, 2017 Vacheslav had a monitored visit
with the children in the Department’s offices. The social worker
noted, “[T]he children did not call him ‘dad,’ hug him or show any
sign of affection or attachment.” Vacheslav asked the children
questions and tried to engage them. The social worker privately
asked T.S. if he knew Vacheslav, to which T.S. replied, “[H]e is
that motorcycle guy from the video. . . . Daddy Slava?”
3. The Jurisdiction/Disposition Hearing
The jurisdiction/disposition hearing was held on
October 12, 2017. Both parents appeared. Nataliya’s counsel
submitted evidence Nataliya had been complying with her case
plan and had petitioned for dissolution of her marriage to Albert.
Neither parent contested a finding of jurisdiction.
The juvenile court sustained the petition and continued the
disposition hearing pending resolution of jurisdictional issues.
Both parents were permitted to have unmonitored visits in a
public setting.
In a report dated November 21, 2017 the Department
stated the children’s visits with Nataliya were going well and
Nataliya’s drug tests had been negative. However, the
4
Department expressed concern Nataliya had “poor judgment in
regards to the children’s well-being and safety in the past.” The
Department recommended the children continue to be placed
with their maternal grandmother and services continue to be
provided to the family.
On December 1, 2017 Nataliya submitted a declaration in
which she stated Vacheslav had urged her to move to the United
States in 2013 to assist with his business. He initially provided
her with financial support but ceased shortly after she moved,
leaving her with no income or means to support their children.
Christian was born in Los Angeles in August 2003, five months
after Nataliya arrived in California. Vacheslav did not meet
Christian until eight months later in 2014, when Nataliya took
the children to Russia for vacation. Vacheslav’s visit with the
boys lasted only one hour, and Vacheslav did not hold or hug
Christian. Prior to this dependency case Vacheslav had met
Christian only three times.
Nataliya’s declaration also recounted that, in 2015,
Nataliya sued Vacheslav in Russia for child support. Vacheslav
initially contested paternity, but, after genetic testing was done,
the Russian court found he was the father of T.S. and Christian.
The Russian court ordered him to pay child support, although
Nataliya alleged the support was paid to Vacheslav’s mother and
never given to her. Vacheslav did not seek custody or visitation
in the Russian proceeding.
In a report dated February 8, 2018 the Department stated
the children were doing well in their maternal grandmother’s
home. Nataliya had three unmonitored visits per week in a
public setting and one unmonitored overnight visit per week.
Nataliya was caring and affectionate with the children, and they
5
had a strong bond and attachment to her. Nataliya was entitled
to visit the children more often, but she told the social worker she
was very busy starting a new business.
The Department continued to express concern over
returning the children to Nataliya. Nataliya had recently
requested a male friend be allowed to monitor her visits and
potentially move into the grandmother’s home to assist with the
children; however, the friend had an extensive criminal record.
The Department asserted this was evidence of Nataliya’s
“pattern of associating with men who have serious criminal
histories” and her failure to address the issues that had initially
brought the children within the Department’s jurisdiction.
The Department reported Vacheslav had two visits with
the children in December 2017 while he was in Los Angeles. He
spoke to them by telephone only once since then. The
Department concluded, “[P]lacing the children with their father
in Russia would be detrimental to their well-being and emotional
stability as father has not had regular contact with the children
for many years and has not maintained a relationship with them
since the inception of this case.”
The continued disposition hearing was held on
February 22, 2018. Vacheslav testified he wanted custody of the
children although he admitted he had never lived with either T.S.
or Christian. He said he had visited the children each time he
was in Los Angeles since the beginning of this proceeding and
explained he had not had contact with the boys since January
2018 because their grandmother would not respond to his
telephone calls. Vacheslav’s counsel requested the boys be
released to their father. Nataliya’s counsel and the children’s
counsel requested the boys be released to their mother.
6
The court declared T.S. and Christian dependents of the
court and released them to Nataliya. The court ordered family
maintenance services be provided to Nataliya and enhancement
services be provided to Vacheslav. Vacheslav was permitted
unmonitored visits at least once per week in California or via
telephone/video conference.
4. The Six-month Review Hearing
In a report dated July 2, 2018 the Department stated the
children were comfortable and well-cared-for in Nataliya’s home.
The children had been participating and progressing in their
court-ordered services. Vacheslav had unmonitored visits over
video conference with the children at least once per week. T.S.
stated he enjoyed visits with his father but wanted to continue
living with his mother and brother. Vacheslav continued to
express his desire to have the children live with him in Russia.
He also sought to have more frequent video conferences with
them.
The Department recommended the court order continued
family maintenance services. While Nataliya had made progress
in her court-ordered therapy and counseling, she had not
provided proof of completion or participation for all services that
had been ordered. The Department also expressed concern over
Nataliya’s ability to provide for the children by means of a legal
income; she was renting a three-bedroom house and employed a
housekeeper five days a week, but she had failed to provide any
proof of income. In addition, the Department opined Nataliya
“has showed no personal awareness as to how she failed to
protect the children causing the initial detention.” Nataliya had
also “shown poor judgment in the last few months [as] evidenced
by the fact that the children have not received well-child check-
7
up[s], their immunizations are not current, their dental
examinations have not occurred and [T.S.’s Individualized
Education Program] only recently was approved by mother.”
In a subsequent report dated July 13, 2018 the Department
stated Nataliya had provided proof the children attended well-
child check-ups and Christian had received immunizations. The
social worker also reported that Nataliya had refused to allow
Vacheslav to visit the boys while he was in Los Angeles prior to
the review hearing.
Vacheslav submitted a declaration in advance of the six-
month review hearing in which he again requested custody of the
children in Russia. In the alternative, he requested permission to
take the children to Russia for 30 days during their summer
vacation from school or to be allowed a weekend overnight visit
while he was in Los Angeles for the hearing. Vacheslav alleged
Nataliya was involved in criminal activity, citing the fact she
lived in an expensive rental property and drove a new sports car
but had no apparent significant income. He also stated Nataliya
frequently interrupted his video conference visits with the
children and made derogatory remarks about him in their
presence.
The six-month review hearing was held on July 13, 2018.
The juvenile court found by a preponderance of the evidence that
Nataliya was not in compliance with her case plan and continued
jurisdiction was necessary. The court ordered continuation of
services for both parents and ordered visitation for Vacheslav
every other week for one week at a time when he is in
Los Angeles in addition to unmonitored video conferences.
8
5. The 12-month Review Hearing
In October 2018 the Department reported Nataliya had
made significant progress in therapy and counseling. The service
providers did not express any ongoing concerns regarding the
children remaining in Nataliya’s care. The children participated
in unmonitored video conferences with Vacheslav at least once
per week. Vacheslav also had two unmonitored weekend visits
with the children since the last hearing. No issues had been
reported regarding these visits. Prior to one visit the
Department social worker observed Vacheslav acting
appropriately with the boys, who were excited about their
weekend visit.
The Department recommended the court terminate
jurisdiction, grant sole physical custody to Nataliya and grant
joint legal custody to Nataliya and Vacheslav. The Department
further recommended the court order unmonitored weekend
visits (or longer during school breaks) to Vacheslav when he was
in California.
The 12-month review hearing was held on October 9, 2018.
At the outset of the hearing Vacheslav’s counsel requested the
matter be set for contest, stating he sought to call witnesses in
support of Vacheslav’s request for custody. The court inquired
whether Vacheslav had filed a section 388 petition requesting
removal of the children from Nataliya. Vacheslav’s counsel
replied he had not. The court stated, “So [Vacheslav’s] asking
for—to go from home of mother to home of father, with him
having sole physical and her having joint legal?” “So in effect, he
is asking for detention from the mother.” “[R]emoving custody
from a parent requires a 388 and requires findings . . . of
substantial risk of detriment and no services available to prevent
9
removal when I’m going solely from one to another instead of
from one to joint.”
The juvenile court then asked Vacheslav’s counsel for an
offer of proof regarding the evidence he wished to present.
Vacheslav’s counsel responded he would present testimony from
a private investigator that Nataliya resided with a convicted
felon and associated with drug dealers. The investigator would
also testify there had been activity outside Nataliya’s residence
consistent with drug use, including people smoking in cars and
“various individuals going in the house unloading things.”
Vacheslav’s counsel also stated he would seek to have Nataliya
testify regarding these observations. The court observed, “So all
of [Vacheslav’s attorney’s] witnesses are about why the mother
shouldn’t have custody, as opposed to why his client should have
custody.”
The court denied the request to set the matter for contest,
finding the evidence proffered was not relevant to the issues
before the court. Proceeding to argument, Vacheslav’s counsel
requested week-long visitation with advance notice when
Vacheslav was going to be in Los Angeles, during which time
Vacheslav would ensure the children continued to attend school.
He also requested video calls multiple times per week, plus visits
in Russia when school was out of session.
The court found Nataliya had complied with her case plan
and the children were no longer at risk. The court terminated
jurisdiction over T.S. and Christian and granted sole physical
and legal custody to Nataliya. Vacheslav was awarded
unmonitored visits in California two weekends each month, plus
video calls at least once per week.
10
DISCUSSION
1. Governing Law
Section 364, subdivision (a), requires the juvenile court to
schedule a review hearing at least every six months for a
dependent child who has not been removed from the physical
custody of his or her parent or guardian. Section 364 applies also
in cases where a child had been removed from the physical
custody of a parent but later returned. (In re Armando L. (2016)
1 Cal.App.5th 606, 614.) At the section 364 review hearing
dependency jurisdiction must be terminated unless the conditions
that created the need for supervision still exist or are likely to
exist if supervision is discontinued: “After hearing any evidence
presented by the social worker, the parent, the guardian, or the
child, the court shall determine whether continued supervision is
necessary. The court shall terminate its jurisdiction unless the
social worker or his or her department establishes by a
preponderance of evidence that the conditions still exist which
would justify initial assumption of jurisdiction under Section 300,
or that those conditions are likely to exist if supervision is
withdrawn.” (§ 364, subd. (c); see In re Shannon M. (2013)
221 Cal.App.4th 282, 290-291 [section 364, subdivision (c),
establishes a “statutory presumption in favor of terminating
jurisdiction and returning the children to the parents’ care
without court supervision”].) “The juvenile court makes this
determination based on the totality of the evidence before it.”
(In re Armando L., at p. 615.)
When terminating its jurisdiction over a child who has been
declared a dependent child of the court, section 362.4 authorizes
the juvenile court to issue a custody and visitation order
(commonly referred to as an “exit order”) that will become part of
11
the relevant family law file and remain in effect in the family law
action “until modified or terminated by a subsequent order.”3
When making a custody determination under section 362.4, “the
court’s focus and primary consideration must always be the best
interests of the child.” (In re Nicholas H. (2003) 112 Cal.App.4th
251, 268; accord, In re Chantal S. (1996) 13 Cal.4th 196, 206.)
2. Vacheslav Was Entitled to an Evidentiary Hearing
Before the Juvenile Court Terminated Jurisdiction and
Issued Exit Orders
Although the juvenile court ultimately considered
Vacheslav’s offer of proof, it initially indicated Vacheslav was not
entitled to present evidence in support of his request for sole
physical custody of the children as part of its exit order because
he had not filed a petition pursuant to section 388.4 That was
incorrect.
Section 388 “is a general provision to be used by any
interested party when circumstances merit an examination of the
orders affecting a dependent child other than the periodic reviews
prescribed by statute.” (In re Roger S. (1992) 4 Cal.App.4th 25,
30.) The section 364 hearing was such a periodic review; and the
court was required to consider at that hearing the totality of the
3 If no family law action is pending, the court’s order “may be
used as the sole basis for opening a file in the superior court of
the county in which the parent, who has been given custody,
resides.” (§ 362.4, subd. (c).)
4 Section 388 provides for modification of juvenile court
orders when the moving party presents new evidence or a change
of circumstances and demonstrates modification of the previous
order is in the child’s best interest. (In re Jasmon O. (1994)
8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
12
circumstances and the children’s best interest in determining
whether jurisdiction should be terminated and in fashioning
appropriate exit orders. Evidence regarding custody and
visitation was necessarily relevant to the proceeding; and the
court was empowered to modify prior orders, even absent a
section 388 petition. (In re Roger S., at p. 30 [During the
section 364 hearing “the trial court had the parties before it for
the specific purpose of assessing progress and determining
whether judicial intervention could be withdrawn. . . . It erred,
however, in . . . finding it was compelled to adopt the existing
seven-month-old visitation order without change”]; accord,
In re Michael W. (1997) 54 Cal.App.4th 190, 194-195 [section 388
petition not required for parent to present evidence at section 364
review hearing].)
On appeal the Department acknowledges the juvenile
court’s broad authority upon termination of its jurisdiction to
fashion a custody and visitation order in the children’s best
interests without the need for a section 388 petition. Mirroring
the analysis used by the juvenile court, however, the Department
argues that discretion does not extend to entering a custody order
that removes a child from the physical custody of the parent with
whom he or she is residing at the time of the hearing.5 To
5 Explaining its position at oral argument, the Department
stated the court could have considered a request for joint physical
custody without the need for a section 388 petition, even though
that would have been a change from the then-current custody
order, because an order for joint custody would not involve
removal of the children from the physical custody of Nataliya.
But, in the words of the juvenile court, “going solely from one to
another instead of from one to joint” did require the filing of a
section 388 petition. In addition to the lack of statutory authority
13
support its position, the Department relies upon section 387,
which requires the Department to file a supplemental petition to
modify a previous order by removing a child from the physical
custody of a parent and directing placement in a foster home.
Section 387 concerns placement outside a parent’s home during
the pendency of the dependency case. Neither directly nor by
analogy does it limit the court’s authority to enter a custody and
visitation order at termination based on the children’s best
interests. (See Cal. Rules of Court, rule 5.700 [“when the juvenile
court terminates its jurisdiction over a dependent or ward of the
court and places the child in the home of a parent, it may issue
an order determining the rights to custody and visitation with
the child”].)
The Department also argues, even if a separate section 388
petition was not required to present to the court Vacheslav’s
request for a custody and visitation order awarding him sole
physical custody of T.S. and Christian, the juvenile court properly
concluded it could not order a change of custody absent a finding
of substantial risk of harm to the children and a lack of available
services to prevent their removal from Nataliya’s custody. This
was also error. To be sure, at the disposition stage of a
dependency proceeding, a court may not remove a child from a
parent’s custody and place the child in the custody of the
Department unless the court finds there is a substantial danger
for this argument, the Department fails to suggest any benefit
the children, the parents, the Department or the juvenile court
would derive from requiring an additional filing when the parties
are, in any event, before the court for the section 364 review
hearing at which the terms of a juvenile court custody order are
properly considered.
14
to the child and no available services to protect the child absent
removal. (See § 361, subd. (c) [“A dependent child shall not be
taken from the physical custody of his or her parents . . . with
whom the child resides at the time the petition was initiated,
unless the juvenile court finds clear and convincing evidence . . . :
[¶] (1) There is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s parent’s
. . . physical custody”].) There is no statutory language, however,
suggesting this standard be applied when the court issues a
custody order upon the termination of jurisdiction pursuant to
section 364. To the contrary, as discussed, at that stage of the
proceedings, the court must consider the child’s best interest.
3. The Juvenile Court Properly Requested an Offer of Proof
Vacheslav argues he had a right to a contested hearing and
the juvenile court erred by conditioning an evidentiary hearing
on an offer of proof.6 Generally, a parent has due process rights
in dependency proceedings. (See David B. v. Superior Court
(2006) 140 Cal.App.4th 772, 777 [“[p]arents have a fundamental
liberty interest in the care, custody, and management of their
children”].) However, “due process ‘is a flexible concept which
depends upon the circumstances and a balancing of various
6 In his appellate briefs Vacheslav argued he had a
constitutional right to an evidentiary hearing without first
making an offer of proof. At oral argument he modified his
position and argued an offer of proof could not be required unless
the parent had the burden of proof on the issue before the court.
15
factors.’ [Citations.] Even where due process rights are
triggered, it must always be determined ‘what process is due.’
[Citation.] We look to ‘the private interest that will be affected by
the agency’s action, the risk of an erroneous deprivation of that
interest, the interest in informing parents of the basis for and
consequences of the action and in enabling them to present their
side of the story, and the agency’s interest in expeditious
decisionmaking as affected by the burden caused by an additional
procedural requirement.’ [Citation.] Accordingly, our courts
have recognized that ‘[d]ifferent levels of due process protection
apply at different stages of dependency proceedings.’” (In re A.B.
(2014) 230 Cal.App.4th 1420, 1436.)
Utilizing these principles, some courts have held requiring
an offer of proof prior to allowing an evidentiary hearing was a
violation of due process if the hearing may result in the
termination of reunification services. (See In re James Q. (2000)
81 Cal.App.4th 255, 268 [requesting offer of proof at
section 366.21 review hearing violated due process because
“[r]eview hearings are critical proceedings” at which “a parent
may be denied further reunification services”]; Ingrid E. v.
Superior Court (1999) 75 Cal.App.4th 751, 753 [offer of proof
impermissible at section 366.22 hearing because it is “a critical
juncture in a dependency proceeding—ordinarily the final
opportunity of a parent to obtain the return of a minor to
parental custody”].) Other courts have found an offer of proof
may be requested when a parent faces termination of parental
rights, but only when the parent has the burden of proof with
respect to the disputed issue. (See M.T. v. Superior Court (2009)
178 Cal.App.4th 1170, 1180 [offer of proof permissible at
section 366.26 hearing because parent had burden to show
16
applicability of an exception to termination of parental rights];
In re Thomas R. (2006) 145 Cal.App.4th 726, 732 [“[p]recluding
the parents from exploring and testing the sufficiency of the
Department’s evidence is fundamentally different than requiring
them to describe evidence they will offer to prove a point”].)
Still other cases have held requiring an offer of proof is
acceptable, regardless of the burden of proof, when a parent is
not facing termination of parental rights. For example, in In re
A.B., supra, 230 Cal.App.4th 1420 the child had been removed
from his mother’s custody and placed with his father subject to
the court’s jurisdiction. (See § 361.2, subd. (b)(2).) Prior to the
review hearing at which the court could terminate jurisdiction
and award custody to the father, the mother sought to present
evidence disputing conclusions in the Department’s reports.
After hearing an offer of proof, the juvenile court refused to hold
a contested hearing and terminated its jurisdiction over the child,
awarding sole physical and legal custody to the father with
supervised visitation to the mother. On appeal the mother
contended the juvenile court had violated her due process rights
by requesting an offer of proof. (In re A.B., at p. 1434.)
The court of appeal affirmed the orders. The court
distinguished cases holding the request for an offer of proof was
impermissible by noting that, in those cases, the parent was
facing termination of parental rights, whereas in the case before
it, the “fundamental issue in proceedings under section 361.2 is
which parent has the best potential to provide a safe and secure
permanent home for the minor. . . . Unlike in James Q., the
denial of reunification services to Mother under section 361.2 is
not a fateful step down the path toward terminating parental
rights. The parental interest at stake in a section 361.2
17
proceeding—which parent the minors will live with—is
comparatively less consequential.” (In re A.B., supra,
230 Cal.App.4th at p. 1437.)
The reasoning in In re A.B., supra, 230 Cal.App.4th 1420 is
applicable to the case at bar. The section 364 hearing considered
whether court supervision would continue or, if terminated, with
whom the children would live and the nature of visitation for the
noncustodial parent. While significant, these determinations did
not represent Vacheslav’s final opportunity to avert termination
of his parental rights. In this context it does not offend due
process to condition the right to a contested evidentiary hearing
on an offer of proof.
4. Vacheslav’s Offer of Proof Was Sufficient To Warrant an
Evidentiary Hearing
Vacheslav argues that, even if it was proper for the juvenile
court to condition an evidentiary hearing on an offer of proof, his
offer was sufficient to warrant a hearing. “A proper offer of proof
gives the trial court an opportunity to determine if, in fact, there
really is a contested issue of fact. The offer of proof must be
specific, setting forth the actual evidence to be produced, not
merely the facts or issues to be addressed and argued.” (In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1124.)
As discussed, responding to the court’s request for an offer
of proof to justify a contested hearing on custody and visitation
issues, Vacheslav’s counsel stated he would present the
testimony of a private investigator who had observed arguably
suspicious activity outside of Nataliya’s residence. He stated the
testimony would also show Nataliya resided with a convicted
felon despite having been told the individual was not allowed to
be around the children. This proposed evidence (as well as
18
Nataliya’s explanation of these circumstances) was relevant to
the court’s consideration whether jurisdiction should be
terminated or whether the family required further supervision to
ensure there was no substantial risk to the boys’ safety. It was
also relevant to the court’s determination of the custody and
visitation arrangement that would be in the children’s best
interest. Further, the offer was sufficiently specific, setting forth
the observations about which the private detective would testify.
The court erred by denying Vacheslav the opportunity to present
this testimony at a contested hearing.
The Department argues any error in denying a hearing was
harmless because the proposed testimony was speculative and
was contradicted by the social worker’s and service providers’
reports concerning Nataliya’s home life. (See In re Celine R.
(2003) 31 Cal.4th 45, 59-60 [harmless error doctrine applies in
dependency cases; dependency court order should not be set aside
unless it is reasonably probable the result would have been more
favorable to the appealing party but for the error].) The
Department’s position, relying exclusively on the written record,
“ignores the vital role that live testimony plays in a court’s
assessment of credibility and its evaluation of conflicting
evidence: ‘Oral testimony of witnesses given in the presence of
the trier of fact is valued for its probative worth on the issue of
credibility, because such testimony affords the trier of fact an
opportunity to observe the demeanor of witnesses. [Citation.] A
witness’s demeanor is “‘part of the evidence’” and is “of
considerable legal consequence.”’” (In re M.M. (2015)
236 Cal.App.4th 955, 964.)
The juvenile court rejected the private investigator’s
testimony without hearing his account of events and the
19
circumstances under which his observations took place. The
court also had no opportunity to assess Nataliya’s response and
her demeanor in attempting to explain the private investigator’s
observations. We, like the juvenile court, have only read the
Department’s account of Nataliya’s living situation. If the
investigator’s testimony were believed and Nataliya could not
provide a sufficient explanation, there is a reasonable probability
the result of the proceedings would have been more favorable to
Vacheslav—either because jurisdiction would have continued,
giving him a further opportunity to make his case for custody, or
because the court would have altered the custody and visitation
arrangement in the exit orders. On this record we cannot
conclude the court’s error in refusing to hold a contested hearing
was harmless.
DISPOSITION
The orders terminating jurisdiction, giving sole legal and
physical custody to Nataliya and granting visitation to Vacheslav
are reversed. The matter is remanded to the juvenile court for a
contested section 364 hearing at which all parties may present
evidence concerning their present circumstances and the
children’s best interest, and for other proceedings not
inconsistent with this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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