In re A.M. CA2/1 ( 2023 )

Filed 10/2/23 In re A.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
In re A.M., A Person Coming Under B325289
the Juvenile Court Law.
_________________________________ (Los Angeles County
Super. Ct. No. 22CCJP00170)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Linda L. Sun, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant
County Counsel, and David Michael Miller, Deputy County
Counsel, for Plaintiff and Respondent.
______________________________
A.L. (Father) appeals from the juvenile court’s findings and
orders at two Welfare and Institutions Code section 3641 hearings,
the second of which culminated in an “exit order”2 awarding
sole legal and physical custody of Father’s daughter, A.M., to her
mother.
Father contends that we must reverse the exit order, as
well as the court’s related findings, because (1) the Department
of Children and Family Services (DCFS) failed to provide him with
adequate notice of the section 364 hearings, (2) the court failed to
enforce its orders permitting him twice-weekly monitored visitation
with A.M., and (3) the court erroneously believed that it lacked
discretion to award Father joint legal custody of A.M.
We conclude, however, that any notice defects were harmless,
Father forfeited his argument concerning visitation, and the record
does not show that the court misunderstood the scope of its
discretion in making the custody determination. We therefore
affirm.
FACTUAL AND PROCEDURAL SUMMARY3
On January 13, 2022, DCFS filed a section 300 petition on
behalf of one-year-old A.M. The petition alleged, inter alia, that
Father and V.M. (Mother) “[had] a history of engaging in violent
altercations” in A.M.’s presence and described an August 28, 2021
1 Unless otherwise specified, further statutory references are
to the Welfare and Institutions Code.
2 The juvenile court has authority to issue custody and
visitation orders when it terminates jurisdiction over a minor.
(§ 362.4, subd. (a).) Such orders are commonly referred to as “exit
orders.” (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1455.)
3 We summarize here only the facts and procedural history
relevant to our resolution of this appeal.
2
incident during which Father allegedly struck Mother while she
was holding A.M. The petition alleged further that Father had
overdosed on fentanyl in January 2021, and that both parents’
substance abuse placed A.M. at risk of serious harm.
When DCFS filed its petition, Father—then 17 years old—
was incarcerated in juvenile hall for violating the terms of
his probation on a charge unrelated to the dependency proceedings.
He appeared at the January 18, 2022 detention hearing in this case
from juvenile hall virtually. After appointing counsel for Father,
the juvenile court detained A.M. from his custody and released her
to Mother. The court further ordered that DCFS provide Father
with twice-weekly monitored visitation, which the court clarified
“[could] be virtual from his place of incarceration.”
On March 7, 2022, DCFS filed an amended petition, which
added an allegation that Mother’s “mental and emotional problems”
endangered A.M.’s physical health and safety. The juvenile court
conducted the detention hearing on the amended petition, as well as
the jurisdiction and disposition hearing, that same day. The court
dismissed the substance abuse and mental health allegations
against Mother, but sustained the domestic violence allegations
against both parents and the substance abuse allegations against
Father. The court ordered A.M.’s continued placement with Mother
and set a section 3644 status review hearing for September 6, 2022.
4 Section 364 provides, in relevant part: “Every hearing in
which an order is made placing a child under the supervision of the
juvenile court pursuant to [s]ection 300 and in which the child
is not removed from the physical custody of his or her parent or
guardian shall be continued to a specific future date not to exceed
six months after the date of the original dispositional hearing. . . .
The court shall advise all persons present of the date of the future
3
The court also issued case plans for both parents. Father’s
case plan required that he complete a 26-week domestic violence
program, a full drug and alcohol program, a parenting class,
and individual counseling. The case plan also entitled Father to
twice-weekly monitored visits with A.M. Father—present virtually
at the hearing and represented by counsel—did not alert the court
that DCFS had failed to arrange any visits between him and A.M.
in the time since the January 18, 2022 detention hearing.5
Following the March 7 hearing, authorities transferred
Father from juvenile hall to a placement at a confidential address
in Oakland, California. Father, however, turned 18 on July 25,
2022, and left the Oakland placement at some point in August 2022.
At the scheduled September 6, 2022 section 364 hearing,
the juvenile court found notice proper and granted Mother’s request
to set a contested hearing concerning termination of dependency
jurisdiction for November 1, 2022. The court did not make any
other findings. Although counsel appeared on Father’s behalf at
the September 6 hearing, Father himself did not appear. It is
unclear whether he received written notice of the hearing: The
record contains a copy of a notice directed to Father, but does not
contain any proof of service corresponding to the notice.6
hearings, of their rights to be present, and to be represented by
counsel.” (§ 364, subd. (a).)
5 DCFS does not dispute that it failed to arrange any
visitation for Father at any point during the dependency
proceedings.
6 Father points out that the face of the notice does not identify
his address. DCFS explains that it redacted the copy of the notice
that appears in our record to avoid disclosing the confidential
address of Father’s Oakland, California placement.
4
In an October 17, 2022 last minute information filing, DCFS
informed the court that Father’s whereabouts were unknown. The
record reflects that DCFS attempted to contact Father at his last
known cell phone number in advance of the November 1, 2022
hearing date, but contains no other evidence reflecting attempts
to provide him with notice of the hearing.
Father did not appear at the November 1 section 364 hearing.
The court nonetheless found notice proper and heard argument
from Mother’s counsel, who pointed to Mother’s successful
engagement in various programs in support of her request to close
the case. In response, Father’s counsel stated that he “[had] had no
direction with [Father],” and “[did] not oppose Mother’s request.”
The court then announced its intention to terminate
jurisdiction and to issue a juvenile custody order awarding Mother
sole physical custody of A.M., but joint legal custody to Father and
Mother. Counsel for DCFS, however, requested that the court
award sole legal custody to Mother:
“[DCFS counsel:] Your Honor, I have one small question
because this is a domestic violence case . . . . I would suggest
perhaps a sole, sole, not sole joint type of closing order. . . . Father
has completed no domestic violence classes—no fault of his own—
but he has not completed domestic violence. That being said, he
can’t elevate to a joint legal. Closing order should be sole, sole for
Mother, with monitored visitation for . . . Father.”
In response, Father’s counsel argued vigorously for joint
custody:
“[Father’s counsel:] . . . In this case this is a very young
father. With him maintaining a case plan, he has done nothing
to indicate that he should not have legal—joint legal custody. . . .
[¶] . . . [¶] . . . He should have joint legal custody keeping in mind
some of the barriers in his case plan at a minimum. When you are
5
talking about him not starting domestic violence, this is someone
who became a father at 16 years old. He was incarcerated. His
case plan doesn’t identify him as a minor. His case plan doesn’t
identify him as incarcerated. And yet he has managed to engage in
services while in custody. And I do think he should have joint legal
while he pursues the remainder of his case plan.”
At the conclusion of the parties’ arguments, the juvenile
court granted sole physical and legal custody of A.M. to Mother
and ordered twice-weekly monitored visitation for Father. Father’s
counsel did not object to the visitation order, nor did he alert the
court that DCFS had failed throughout the dependency proceedings
to arrange any visitation between A.M. and Father.
Father timely appealed.
DISCUSSION
Father argues that we must reverse the findings and orders
at the section 364 hearings—including the exit order awarding
Mother sole physical and legal custody of A.M. and limiting Father
to monitored visitation—because (1) DCFS failed to provide him
with adequate notice of the section 364 hearings, (2) the juvenile
court failed to enforce its orders entitling him to twice-weekly
monitored visitation with A.M., and (3) the court erroneously
concluded that it lacked discretion to award Father joint custody
of A.M. We disagree.
First, we conclude that any failure by the court to provide
Father with adequate notice of the section 364 hearings was
harmless. (See In re R.F. (2021) 71 Cal.App.5th 459, 474 (R.F.)
[applying harmless error analysis to allegedly deficient notice].)7
7 For purposes of our analysis, we assume, without deciding,
that Father did not receive adequate notice of the section 364
hearings.
6
Although Father failed to appear at the hearings, counsel appeared
on his behalf. His attorney highlighted for the juvenile court the
factors counseling in favor of joint legal custody—including Father’s
youth and the obstacles his incarceration posed to his completion of
the case plan—and the court remained unpersuaded.
Father fails to articulate what additional arguments, if any,
he would have made concerning custody had he received adequate
notice of the hearings. He also fails to identify any other actions
he might have taken (such as requesting a continuance or other
form of relief) had he received proper notice. We therefore are not
persuaded that it is reasonably probable that the court would have
made findings and orders more favorable to Father absent the
allegedly defective notice. (R.F., supra, 71 Cal.App.5th at p. 474
[pursuant to the harmless error test, “a judgment in a dependency
case 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”].)
Second, we conclude that Father forfeited his challenge to
the juvenile court’s alleged failure to enforce its visitation orders.
Father was present at the January 18, 2022 hearing at which
the court first ordered that DCFS facilitate twice-weekly visitation
for him, and Father appeared at the subsequent March 7, 2022
hearing. In addition, counsel appeared on Father’s behalf at the
September 6 and November 1, 2022 section 364 hearings. At no
point during any of the hearings did Father or his counsel object
to DCFS’s failure to arrange visitation. Father thus failed to
preserve this argument for appeal. (See In re Dakota H. (2005)
132 Cal.App.4th 212, 222 (Dakota H.) [the forfeiture doctrine
“applies in juvenile dependency litigation and is intended to
prevent a party from standing by silently until the conclusion of
the proceedings”].)
7
Father’s arguments in opposition do not persuade us
otherwise. He contends that, under Family Code section 6701,
he lacks the capacity to forfeit arguments on appeal because
he was a minor for most of the dependency proceedings.8 That
section, however, sets forth certain restrictions on a minor’s ability
to enter into contracts and does not speak to a minor’s appellate
rights. (See Fam. Code, § 6701.) Moreover, Father fails to point
to any authority in support of his argument. The two cases he cites
concerning the forfeiture doctrine make no mention of Family Code
section 6701. (See In re Valerie A. (2007) 152 Cal.App.4th 987[no discussion of Family Code section 6701]; Dakota H., supra, 132
Cal.App.4th 212 [same].)
Father also argues that DCFS’s purportedly “unclean
hands” in this case prohibit us from applying the forfeiture doctrine.
Here again, however, Father fails to provide any authority in
support of his position. The cases on which he relies do not arise in
the dependency context, nor do they address the interplay, if any,
between the unclean hands and forfeiture doctrines. (See Lynn v.
Duckel (1956) 46 Cal.2d 845, 850 [affirming trial court’s finding that
plaintiff who unlawfully disregarded city’s permit procedure had
“unclean hands” and therefore was not entitled to relief]; Fladeboe
v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 57–58
8 Family Code section 6701 provides: “A minor cannot do
any of the following:
(a) Give a delegation of power.
(b) Make a contract relating to real property or any interest
therein.
(c) Make a contract relating to any personal property not
in the immediate possession or control of the minor.” (Fam. Code,
§ 6701, subds. (a)–(c).)
8
[affirming trial court’s finding that plaintiffs who violated vehicle
code had “unclean hands” barring their recovery].)
Third, and finally, nothing in the record suggests the
juvenile court misunderstood the scope of its discretion in making
the custody determination. Father contends that DCFS argued
at the November 1, 2022 hearing that Family Code section 3044,
subdivision (a)9—which establishes a presumption against
awarding custody to certain domestic violence perpetrators—
applied to the proceedings, and that the court mistakenly agreed
with DCFS’s position. Although we agree that In re C.M. (2019)
38 Cal.App.5th 101, holds that the section does not apply to
juvenile court proceedings, we disagree that the record supports
that the court relied on that section in denying Father joint legal
custody. The court did not mention the section nor did DCFS or
Father. And nothing the court stated suggests it relied on that
section or believed it lacked discretion to award joint custody to
Father. The record is, at best, ambiguous as to what authority
DCFS was relying on to oppose joint legal custody. It would be
mere speculation to assume the court relied on a statute not
mentioned nor its effect even explained.
Accordingly, we affirm the juvenile court’s findings and orders
at the section 364 hearings.
9 Family Code section 3044, subdivision (a) provides,
in relevant part, that “[u]pon a finding by the court that a party
seeking custody of a child has perpetrated domestic violence within
the previous five years against the other party seeking custody of
the child . . . there is a rebuttable presumption that an award of
sole or joint physical or legal custody of a child to a person who has
perpetrated domestic violence is detrimental to the best interest of
the child.” (Fam. Code, § 3044, subd. (a).)
9
DISPOSITION
The findings and orders from which Father has appealed are
affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
10