H.M. v. Superior Court CA2/3 ( 2021 )

Filed 4/9/21 H.M. v. Superior Court CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
H.M. et al., B309102
Petitioners,
Los Angeles County
v. Super. Ct. No.
18CCJP08044A
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Debra Archuleta,
Judge. Petitions granted.
Law Office of Thomas Hayes, Nicole J. Johnson and Laura
A. Menke for Petitioner H.M.
Law Office of Rachel Ewing, Steven Shenfeld and Christine
Hernandez for Petitioner J.R.
Rodrigo Castro-Silva, County Counsel, and David Michael
Miller, Deputy County Counsel, for Real Party in Interest
Department of Children and Family Services.
_______________________________________
INTRODUCTION
H.M. (mother) and J.R. (father) petition for extraordinary
relief from the juvenile court’s November 16, 2020 order vacating
its prior order returning the minor, N.M., to their custody,
terminating reunification services, and setting a selection and
implementation hearing under Welfare and Institutions Code
section 366.26.1 The parents contend the court violated their
right to due process by denying them the opportunity to challenge
new evidence submitted by the Department of Children and
Family Services (Department) for the November 16, 2020
proceeding. That evidence indicated that the parents may have
violated the court’s prior order by having contact with each other.
The parents ask us to reverse the November 16 order and
remand the matter to the court with directions to conduct a
contested hearing and permit the parents to testify and call
witnesses. The Department takes no position regarding the
issues raised by the parents, and N.M.’s counsel did not file a
response to the petitions. We grant the petitions.
BACKGROUND
Although the underlying proceedings in this dependency
case are extensive, the essential facts necessary to our opinion
are straightforward.
1Undesignated statutory references are to the Welfare and
Institutions Code.
2
Mother has three children: R.M. born in 2009; M.R. born in
2016; and N.M. born in 2017. Mother and father have two
children in common, M.R. and N.M.
In December 2018, the Department filed a dependency
petition under section 300, subdivisions (a), (b), and (j), on behalf
of N.M. The Department alleged N.M. was in danger of suffering
physical harm based on domestic violence between mother and
father (counts a-1, b-1, j-1), and father’s history of substance
abuse (counts b-2, j-2). In January 2019, the court found
jurisdiction over N.M. based upon four of the five counts asserted
in the petition. At the disposition hearing, the court removed
N.M. from the parents’ custody, awarded them monitored
visitation provided they not visit the minor together, and ordered
reunification services.
In September 2019, the Department filed a subsequent
petition under section 342. The Department alleged that N.M.
was in danger of suffering physical harm based on father’s sexual
abuse of mother’s oldest child, R.M. (counts b-1, d-1, j-1). In
November 2019, the court sustained the allegations asserted in
the subsequent petition, and modified the parents’ case plans to
include sexual abuse counseling.
On September 15, 2020, the court conducted a review
hearing. At that hearing, the parents requested a contested
hearing to challenge the Department’s recommendation to
terminate reunification services and set a section 366.26 hearing.
The court granted the parents’ requests and scheduled a
contested hearing for November 10, 2020. The court also ordered
the Department to have the social worker “on call” for November
10, 2020, and ordered it to produce “Title 20s” from February 5,
2020 through November 3, 2020.
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1. The November 10, 2020 Review Hearing
On November 4, 2020, a Department social worker—Jenny
Becerra— filed a last minute information in connection with the
November 10, 2020 hearing. According to Becerra, N.M.’s
caregiver believed that the parents continue to have contact with
each other because they bring the same toys and bicycle to their
visits with N.M. Both parents, however, were observed parenting
appropriately. Although mother was attending individual
counseling and reported that she talks about the emotional
effects of having an open dependency case, she did not disclose to
Becerra that she discusses case issues regarding domestic
violence or sexual abuse awareness. Father reported that he no
longer engages with mother, he had completed a drug and alcohol
program, and participated in aftercare programs. Based on
Becerra’s reunification re-assessment, the Department
recommended termination of reunification services for both
parents.
The court conducted the 18-month review hearing on
November 10, 2020. At the beginning of the hearing, the
Department asked the court to terminate family reunification
services and set a hearing under section 366.26. After admitting
exhibits into evidence, the court allowed both parents to testify.
Mother testified by telephone and was assisted by a Spanish
language interpreter. Father also testified and was assisted by a
Spanish language interpreter. The Department and minor’s
counsel did not call any witnesses.
Mother testified that she has participated in programs
involving sexual abuse awareness, Al-Anon, domestic violence,
and parenting. Mother also testified that she no longer lives with
father and has no intention of reunifying with him in the future.
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When asked why it would be different if N.M. were returned to
her custody given the court’s concerns about violations of court
orders, mother responded that she learned from her classes “to
first protect my children and also to protect myself.”
For his part, father testified that he had been going to
alcoholics anonymous meetings for six months and had completed
parenting classes. In addition, as a result of completing a 52-
week domestic violence program, father learned to control his
anger “and not be given [sic] to violence. More than anything to
be able to control [his] anger.” Father testified that when at work
his childcare plan would include his sister or other relatives
watching N.M. And as a result of taking sexual abuse classes,
father learned to control his mind, correct his way of looking at
things, how he acts with other people, and his attitude. He also
testified that he was not currently in a relationship with anyone,
including mother, and that he had his own house. Father stated
that he submits to weekly drug and alcohol testing and calls the
social worker to arrange for testing when he is unable to submit
to a previously scheduled test.
After the parents testified, minor’s counsel asked the court
to adopt the Department’s recommendations to terminate
reunification services and set a section 366.26 hearing. Relying
on the social worker’s reports, counsel argued that mother had
continued to pursue a relationship “of some sort” with father. In
particular, counsel drew the court’s attention to statements in the
report that mother continues to receive money from father to help
pay her rent and costs of living. Although acknowledging that
mother has reported that father gives money to a pastor who
then gives it to mother, counsel contended that mother’s reliance
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on father for financial support “allows him to have a mechanism
of power and control over the mother[.]”
Prior to hearing further argument, the court commented as
follows: “[E]ven if mom was taking some money that was
delivered from father to the pastor from the church, what is her
option?” “She is a woman of limited or no means who’s got her
own place who is trying to work. And if she needs a helping hand
is there some social service agency that’s going to give it to her?”
“And now we’re questioning who was the provider of that money
to the pastor that gave it to her?” The court stated, “It’s not an
issue of power and control. It’s a matter of survival for this
woman. She doesn’t have a lot of options. And it seems to the
court, frankly, she’s doing everything she can and is supposed to
do to try to get her child back.”
After the Department pointed out that the last minute
information indicated that mother intended to reconcile with
father in the future, the court responded, “[I]s it your position
that the only way she is going to ever understand and benefit
from programs is if she never has any contact with the father of
her son for the rest of her life?” The court continued, “In your
mind, because she indicated that she might reunify at some point
in the future down the road, is that never allowed with a family
who has been pulled apart by these kinds of allegations to ever
reunify in the Department’s mind?”
After hearing argument, the court returned the minor to
the parents’ custody. The court explained that mother “has done
what she was supposed to do.” The court noted that despite
“difficult obstacles of language, finances, and the pandemic,” the
parents demonstrated “that they are worthy of having an
opportunity to be the parents of this little boy.” As for father, the
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court stated he “has made tremendous efforts. And we are going
to have to make some carve outs to make sure that mother and
father stay apart.”
As for concerns involving prior violations of court orders,
the court stated: “People violate orders all the time. I don’t like it.
I’ve been known to speed myself. People violate orders. It’s an
unfortunate thing and I wish there was more respect for the rule
of law. But if father is sending mother [sic] to help support her
through the pastor so she doesn’t end up on [sic] a tent down on
Hope Street, I have no problem with that. I know some of you do.
But I don’t. Mistakes have been made with the other children and
I want to give this family a chance to try to be a family for
[N.M.].”
After making its ruling and ordering the return of the
minor to the parents’ custody, the court asked the parties to
develop a visitation schedule. The court also stated it believed a
restraining order with a visitation carve out should be prepared
by mother’s counsel. At the Department’s request, the court
stayed its order until November 19, 2020, and ordered the
parents to appear at the November 19 hearing. Before concluding
the hearing, the court informed the parents, “[Y]ou are not to
have contact with each other. I am issuing a stay-away order. You
are not to have contact with each other. If I find out that you are
violating my orders there’s a good chance by the 19th that I will
change my mind and not release the child to you.” There is no
indication in the record that a written restraining order was
prepared or served on the parents.2
2The November 10, 2020 minute order states that mother and father
are not to come within 100 yards of each other. The court’s oral ruling
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2. The November 16, 2020 Hearing and Writ Petitions
At 8:30 p.m. on November 10, 2020—i.e., after the court
issued its November 10 order—Becerra went to mother’s home.
In an interim review report filed on November 12, 2020, Becerra
stated that she observed mother standing outside father’s truck
speaking with him while he was inside of the truck parked
outside mother’s home. Becerra further reported that the parents
recognized her. Father drove away and mother was “nervously
pacing back and forth between the street towards where [father]
drove to and [mother]’s home.” A couple of minutes later, mother
went inside her home.
On November 12, 2020, the Department filed a “Request for
Walk-On” seeking to vacate the court’s prior order because the
parents had violated the mutual stay-away order issued on
November 10.
On November 16, 2020, the court conducted a hearing on
the Department’s request. The parents and their respective
counsel were present. The Department and minor’s counsel asked
the court to vacate its November 10 order returning the minor to
the custody of the parents, terminate reunification services, and
set a section 366.26 hearing, based on the parents’ violation of
the stay-away order.
Mother’s counsel denied Becerra’s allegations and
requested that a hearing be set “so we will have an opportunity to
cross-examine the writer of this report, as well as so mother can
testify as to her—as to what happened that night, as she does
deny this.” Counsel further explained, “Right now the court only
at the hearing, however, did not specify any required distance and
anticipated the preparation of a written order by mother’s counsel.
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has a 385 stating that the social worker saw the mother and the
father. But without more, without also giving mother an
opportunity to cross-examine the social worker, it’s our position
that the court won’t be able to make a finding as to credibility
without allowing mother to testify and allowing mother to cross-
examine the social worker.” Father’s counsel joined mother’s
request for a contested hearing and stated that father was not at
mother’s home as was alleged by Becerra.
The court denied the parents’ requests for a contested
hearing and vacated its November 10 home-of-parent order. The
court also terminated reunification services and scheduled a
hearing under section 366.26 for March 15, 2021. The court
explained, “On November 10, 2020, my recollection is that both
mother and father testified. They had the opportunity to be
represented by very able counsel, they had interpreters. This
hearing went on for nearly an hour, and I listened to very
protracted and thorough arguments by Ms. Menke on behalf of
mother and Ms. Hernandez on behalf of father. … And then when
this court gets information that the very night that the court
makes the order where they are not to have contact with each
other, the court receives notification of a violation. Therefore, I
am changing my order[.]”
The court further advised, “If you want to bring in the
social worker, you can subpoena he or she for the .26 hearing
date, but I’m not going to entertain any interim testimony on this
matter.” After mother’s counsel objected to the denial of her
request for a contested hearing, the court responded, “Well, you
can have that chance at the .26 hearing. I gave this case an
abundance of time last weekend [sic]. So I certainly understand
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mother’s objection and her disappointment, as well as father’s.
But violations of court orders that blatant I have to take action.”
On November 17, 2020, mother filed a notice of intent to
file a writ petition challenging the November 16, 2020 order;
father filed his notice of intent on November 20, 2020. The
parents filed separate petitions on February 25, 2021. On March
4, 2021, we issued an order to show cause stating our intent to
decide the matter on the merits, and stayed the section 366.26
hearing scheduled for March 15, 2021.
DISCUSSION
The parents contend the court violated their right to due
process by denying them a contested hearing to challenge
Becerra’s assertion that they violated the court’s stay-away order.
As noted, the Department takes no position regarding the issues
raised by the parents, and N.M.’s counsel did not file a response
to the petitions. The parents’ due process contentions present an
issue of law which we review de novo. (In re A.B. (2014) 230
Cal.App.4th 1420, 1434.)
“It is axiomatic that due process guarantees apply to
dependency proceedings. [Citations.] Parties to such proceedings
have a due process right to confront and cross-examine witnesses,
at least at the jurisdictional phase. [Citations.] The essence of
due process is fairness in the procedure employed; a meaningful
hearing, one including the right to confront and cross-examine
witnesses, is an essential aspect of that procedure.” (Ingrid E. v.
Superior Court (1999) 75 Cal.App.4th 751, 756–757; see also In re
J.P. (2017) 15 Cal.App.5th 789, 800 [due process requires that
parents be given the right to cross-examine adversarial
witnesses, such as the caseworker and persons whose hearsay
statements are contained in the reports].)
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Due process “is a flexible concept which depends upon the
circumstances and a balancing of various factors.” (In re Jeanette
V. (1998) 68 Cal.App.4th 811, 817; see Sheri T. v. Superior Court
(2008) 166 Cal.App.4th 334, 341.) Even where due process rights
are triggered, it must always be determined what process is due.
(In re Malinda S. (1990) 51 Cal.3d 368, 383, partially superseded
by statute as explained in In re I.C. (2018) 4 Cal.5th 869, 884–
885.) 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 decision
making as affected by the burden caused by an additional
procedural requirement.” (In re James Q. (2000) 81 Cal.App.4th
255, 267 (James Q.).)
Review hearings are a critical aspect of the dependency
system. (James Q., supra, 81 Cal.App.4th at p. 262.) “[F]indings
made at those hearings often form the basis of an order at the
permanent plan hearing terminating parental rights. (§ 366.26,
subd. (c).) In order to terminate parental rights, the juvenile
court must expressly make two findings: ‘(1) that there is clear
and convincing evidence that the minor will be adopted; and (2)
that there has been a previous determination that reunification
services shall be terminated.’ [Citation.]” (Ibid.) “If the child is
not returned to the parents at the 18-month review, the court
must set the matter for a section 366.26 hearing.” (Cynthia D. v.
Superior Court (1993) 5 Cal.4th 242, 249.)
With these principles in mind, we are persuaded that due
process requires the juvenile court to allow the parents to
challenge Becerra’s contention that they violated the mutual
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stay-away order at a contested review hearing. As we explained,
at the end of the November 10 hearing, the court ordered the
return of the minor to the custody of the parents. It also ordered
a mutual stay-away order prohibiting the parents from having
contact with one another, except in the exercise of permitted
visitation. The court stayed the order returning N.M. to the
parents’ custody until November 19. When the Department filed
its November 12 walk-on request seeking to vacate the court’s
November 10 order, it relied on new evidence from Becerra. That
evidence indicated that at 8:30 p.m. on November 10, Becerra
had observed the parents together outside of mother’s home in
violation of the court’s mutual stay-away order.
At the November 16 hearing on the Department’s walk-on
request, the Department and minor’s counsel asked the court to
consider this new evidence and reconsider its November 10 order
to return the minor to the parents. And the court did exactly
that— based on the new evidence, the court vacated its
November 10 order returning the minor to the parents and made
a new and different order terminating the parents’ reunification
services and setting a section 366.26 hearing. The November 16
proceeding was for all intents and purposes a further 18-month
review hearing, and the court should have scheduled a contested
hearing to allow the parents the opportunity to address the new
evidence submitted by the Department.3
3Certainly, a juvenile court is vested with broad authority to fashion
orders concerning the welfare of a dependent child and, subject to due
process, to modify its prior orders as appropriate. (See M.L. v. Superior
Court (2019) 37 Cal.App.5th 390, 400.)
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On this record, we also cannot conclude that the court’s
reliance on the new evidence was harmless. At the end of the
November 16 hearing, the court vacated its November 10 order
returning the minor to the parents’ custody based solely on the
new evidence. And the court’s finding that the parents violated
the mutual stay-away order impacted the proceedings in other
ways—the court denied the parents reunification services and set
the matter for a section 366.26 hearing to terminate their
parental rights.
To be sure, in acknowledging the parents’ requests for an
opportunity to cross-examine Becerra and challenge her reported
observations of the parents being seen together, the court
responded that while it was “not going to entertain any interim
testimony on this matter,” they could “subpoena [the social
worker] for the [section 366].26 hearing date.” But the hearing
under section 366.26 takes place after the juvenile court finds
that the parents are unfit and the child cannot be returned to
them. (In re Grace P. (2017) 8 Cal.App.5th 605, 611.) And if “the
court has found the child likely to be adopted [at the section
366.26 hearing], the burden shifts to the parents to show
exceptional circumstances exist such that termination [of
parental rights] would be detrimental to the child.” (Ibid.) Stated
another way, the legal issues to be decided by the court at the
section 366.26 hearing are whether the minor is adoptable and if
there are any exceptions to the termination of parental rights,
not whether the minor should be returned to the parents’
custody. As such, evidence regarding the observations of the
social worker of the parents being together on November 10
would be irrelevant. We therefore agree with the parents that the
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ability to cross-examine the social worker at the section 366.26
hearing is an inadequate remedy.
Accordingly, we reverse the court’s November 16, 2020
order. On remand, the court shall conduct a contested hearing to
allow the parents to challenge the Department’s new evidence. At
this hearing, the parties can address the facts as they existed at
the time of the November 16, 2020 proceeding, as well as any
subsequent developments. (See In re Ryan K. (2012) 207
Cal.App.4th 591, 597 [on remand, juvenile court may consider
matters that transpired while the appeal was pending].)
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DISPOSITION
The petitions for extraordinary relief are granted. A
peremptory writ of mandate shall issue directing the juvenile
court to reverse its November 16, 2020 order. On remand, the
court shall conduct a contested hearing consistent with the views
expressed in this opinion. This opinion is final immediately upon
filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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