In re A.M. CA2/1

Filed 5/25/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 B309354
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP05447)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
AR.M.,
Defendant and Appellant.
APPEAL from an order and judgment of the Superior Court
of Los Angeles County, Pete R. Navarro, Temporary Judge.
Affirmed.
Law Offices of J. Jeff Chambliss and J. Jeff Chambliss for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
Ar.M. (father) repeatedly sexually abused his son, A.M. As
a result of father’s sexual abuse, the juvenile court assumed
jurisdiction over A.M., denied father reunification services, and
ultimately granted mother sole custody of A.M. A criminal
protective order and civil restraining order prevented father from
contacting A.M., and father had no visits during the pendency of
the juvenile court proceedings.
Father filed a Welfare and Institutions Code1 section 388
petition in which he sought full custody of A.M., despite court
orders preventing him from contacting A.M. Father, who never
acknowledged his conduct and never attempted to reform,
identified no changed circumstances and no evidence supporting
the conclusion that it was in A.M.’s best interest to award father
full custody and place A.M. in the home of the person who
sexually abused him. On appeal, we reject father’s argument
that the juvenile court erred in summarily denying his
section 388 petition.
Father also argues the following: (1) The commissioner
should have stepped aside when father requested a judge at the
October 21, 2020 hearing; and (2) the juvenile court erred in
requiring father to participate in a hearing remotely by WebEx
under a protocol implemented to address the COVID-19
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
2
pandemic. Neither argument has merit. Finally, father’s
argument that a judge was required to sign the commissioner’s
order removing A.M. from father’s custody is not cognizable on
appeal because father did not timely appeal from the relevant
order.
We affirm the order summarily denying father’s section 388
petition. We also affirm the judgment terminating juvenile court
jurisdiction.
BACKGROUND
A.M. was born in 2007. Mother and father were divorced in
2015. Their child, A.M., lived with father until approximately
August 2, 2019 when A.M. revealed that father sexually abused
him. On August 6, 2019, police arrested father based on the
sexual abuse of A.M. Father was charged with lewd and
lascivious acts with a child under 14. The Los Angeles County
Department of Children and Family Services (DCFS) reported
that if father were convicted, the criminal court could sentence
him to prison for life.
On August 4, 2019, A.M. told police that father sexually
abused and molested him for five years. When A.M. was five
years old father slept with him in the same bed, and father
always slept naked. Father would touch and caress A.M.’s
thighs. When A.M. was six and seven years old, father touched
him on a daily basis. Father asked A.M. to kiss father’s penis.
Father also put his penis in A.M.’s mouth approximately six
times. A.M. reported that father would masturbate in front of
A.M. One time, A.M. saw father ejaculate and asked if the
emission was milk. Father responded, “No, this is how you were
made.” Approximately 12 times, father rubbed his hands on
A.M.’s penis and father’s penis simultaneously. A.M. reported
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that he sometimes woke up naked and was suspicious that father
had removed his clothing while he slept.
Also on August 4, 2019, mother told police that father
wrote her love letters when mother was 13 years old. Mother
later reported that father was 20 years older than she, and that
they married when mother was 20 years old.
Police searched father’s house August 6, 2019. The police
removed flash drives, laptops, hard drives, cameras, recording
equipment, and firearms. Two of father’s flash drives contained
videos of child pornography. “The videos included young boys
having anal sex, masturbating, touching each other’s penises,
and performing oral sex on each other.” The videos also showed
an adult inserting his penis in a young boy’s mouth.
On August 6, 2019, A.M. and mother called father at the
police’s request. A.M. directly confronted father about the sexual
abuse, and father did not deny it. When A.M. asked father why
he made him “ ‘suck his penis in bed,’ ” father did not deny that
conduct.
A forensic interviewer interviewed A.M. on August 7, 2019.
A.M. indicated that when he was six years old, he wanted to play
on an iPad and father insisted that A.M. put his mouth on
father’s penis. Father “made it sound like it was normal.” A.M.
said that father touched his leg, thigh, hips, and “around” his
genitals. A.M. would push father away, but father would
continue. Father touched A.M.’s penis when A.M. was in bed.
A.M. was not naked; Father was naked.
A.M. told the forensic interviewer that he remembered
waking up with no clothes, and when he asked father, father
responded that A.M. had a “bad habit of taking off” his clothes.
A.M. said that father put his penis in A.M.’s mouth six times.
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Father started doing this when A.M. was six and a half or seven
years old. Father also put his mouth on A.M.’s penis. As he had
told the police, A.M. told the interviewer that father masturbated
in front of A.M. One time, father ejaculated and told A.M.,
“[T]his [is] just how you were made.” A.M. saw father look at
naked bodies online. A.M. denied that father sodomized him, but
he was not certain because he was a “deep sleeper” and thought
father might have “drugged” him.
A.M. told the interviewer that he did not want to attend the
school father had selected for him to attend. A.M. wanted to go to
the school where his friends attended.
On August 7, 2019, police reported the incident to DCFS.
A.M. reported a description of father’s conduct to a social worker
consistent with what he told to the police and the forensic
interviewer. Father’s attorney told a social worker that father
refused to answer any questions because of his pending criminal
case.
On August 9, 2019, the Los Angeles County Superior Court
issued a temporary criminal protective order protecting A.M. A
permanent criminal protective order subsequently issued
protecting A.M. until August 8, 2022. On August 28, 2019, the
juvenile court entered a restraining order protecting A.M. and
mother from father. The juvenile court entered a permanent
restraining order on December 11, 2019. The order gave father
no visitation. The permanent restraining order was set to expire
on December 11, 2022.
1. DCFS files a petition and the juvenile court assumes
jurisdiction over A.M.
On August 22, 2019, DCFS filed a petition naming A.M.,
who was then 11 years old. The petition alleged that father
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“repeatedly sexually abused the child for a period of 7 years by
forcing the child to orally copulate the father’s penis while the
father fondled the child’s thighs, legs and buttocks. On prior
occasions, the father exposed the father’s penis and masturbated
in the presence of the child. . . . On prior occasions, the father
fondled the child’s penis and masturbated the child.” Father also
rubbed his naked body against the child and orally copulated the
child’s penis.
On August 23, 2019, the juvenile court ordered A.M.
released to mother under DCFS’s supervision. The court further
ordered no visitation for father unless the criminal protective
order were modified.
The juvenile court sustained the petition on December 11,
2019.2 The court again ordered no contact between father and
A.M. Specifically, the court ordered: “No visits for father so long
as criminal protective order/lawful restraining order exists.”
The court ordered no reunification services for father
pursuant to section 361.5, subdivision (b)(6). Section 361.5
provides in pertinent part: Reunification services are not
required when “the child has been adjudicated a dependent
pursuant to any subdivision of Section 300 as a result of severe
sexual abuse or the infliction of severe physical harm to the child,
a sibling, or a half sibling by a parent or guardian, as defined in
this subdivision, and the court makes a factual finding that it
would not benefit the child to pursue reunification services with
the offending parent or guardian.” (§ 361.5, subd. (b)(6)(A).)
A.M. told social workers he wanted no contact with father.
2 The record does not include a reporter’s transcript of the
jurisdictional hearing. The minute order reflects that father
did not testify at the jurisdictional hearing.
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2. A.M. felt safe with mother
A.M. repeatedly told social workers he felt safe living with
mother. A.M. liked the school he attended while in mother’s
custody, and made new friends. Mother walked A.M. to school
every day. Social workers reported A.M. was safe in mother’s
home. Mother was able to provide for A.M.’s health and
education. A social worker observed a bond between mother and
A.M. A.M. reported that mother took “good care” of him. A.M.
“thriv[ed] in the home and care of his mother.”
3. Father obtains new counsel and files a section 388
petition
On September 18, 2020, father retained new counsel. The
minute order from the September 18, 2020 hearing indicated that
the section 364 hearing, was set for October 21, 2020.3 The
minute order required father “to be available to participate via
WebEx.”
3 Section 364, subdivision (c) provides: “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. Failure of the parent or guardian to
participate regularly in any court ordered treatment program
shall constitute prima facie evidence that the conditions which
justified initial assumption of jurisdiction still exist and that
continued supervision is necessary.”
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On October 13, 2020, father filed a petition to change a
court order pursuant to section 388. Father requested “[f]ull
custody of [A.M.] with Father.” Father stated that the requested
action would be better for A.M. because “Mother has exposed
[A.M.] to the risk of Co-Vid infection.” Father stated that “a
witness . . . can testify as to inaccuracies in the testimony of [a
person who testified at the jurisdictional hearing] and a motive to
fabricate on [A.M.’s] part.” Father did not further identify the
witness or the challenged testimony.
On October 15, 2020, the juvenile court denied the
section 388 petition without a hearing.
Five days after the juvenile court denied his petition, father
filed N.S.’s declaration in support of his section 388 petition. N.S.
declared that she was father’s girlfriend and had been introduced
to A.M. She observed A.M. “to be very comfortable around his
father, smiling often.” She observed them joking and working
together on A.M.’s homework. She heard A.M. say he was not
afraid of father. She also observed A.M. and father argue about
where A.M. would attend school. “It was obvious to me [N.S.]
that [A.M.] was extremely upset and unhappy about his father’s
decision to send him to private school.” A.M. said he would “ ‘do
ANYTHING’ ” not to attend the school father wanted him to
attend. The declaration does not reflect that N.S. was aware of
the basis for jurisdiction in this case.
4. The juvenile court continues the section 364 hearing
The section 364 hearing was scheduled for October 21,
2020. On September 25, 2020, father was served notice of the
hearing. The notice DCFS served on father included a flyer
stating that due to COVID-19, the juvenile court was conducting
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remote hearings and that the parties could participate by
telephone or videoconference.
A status review report dated October 21, 2020 indicated
that mother continued to parent A.M. and that they shared a
bond. DCFS reported that “[a]s with most children during this
COVID19 Pandemic, he [A.M.] has become bored with not having
in-person contact with friends and even family.” Mother
“scheduled a couple of outings and a vacation to relieve [A.M.] of
the stress of the isolation caused by the COVID19 Pandemic.”
A.M. “has remained healthy and CSW observes he is comfortable
in mother’s care and he has extended family relatives who have
continued to be supportive . . . .”
On October 21, 2020, at the time scheduled for the hearing,
counsel for father requested that he and father appear in the
courtroom rather than appearing remotely. The juvenile court
denied the request. The court found no extraordinary
circumstances existed to allow father to appear in person.
Counsel and father appeared via WebEx.
Father’s counsel stated that he did not stipulate to the
matter being heard by a commissioner and requested that the
matter be heard by a judge. Commissioner Navarro, who had
presided over the entire case, denied the request to transfer the
case to another judicial officer.
The court granted father’s requested continuance of the
section 364 hearing and continued the hearing to November 6,
2020. The court again ordered the parties to appear via WebEx.
5. The juvenile court holds a section 364 hearing
On November 6, 2020, the juvenile court held a section 364
hearing to determine whether continued juvenile court
supervision was necessary. Father’s counsel argued that father
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had concerns about A.M.’s safety in mother’s custody because
mother exposed A.M. to COVID-19 and mother may leave the
United States. Counsel provided no evidence to support these
contentions.
The juvenile court found no need for continued dependency
jurisdiction. “The mother has shown that she has a protective
capacity to protect this child . . . .” The court found “because of
the significant trauma, physical, psychological trauma that this
child suffered,” that visits with father would be detrimental.
6. Final judgment
On November 6, 2020, the court issued a final judgment
awarding mother full custody of A.M. The juvenile court denied
father visitation. The judgment indicates that a criminal
protective order and a restraining order were in effect.
Father filed a notice of appeal on November 25, 2020. The
notice indicates that father was appealing from the denial of his
section 388 petition and the judgment terminating jurisdiction.
DISCUSSION
A. Father Demonstrates No Error In the Summary
Denial of His Section 388 Petition
Father contends the juvenile court erred in denying his
section 388 petition without setting a hearing. Father cites no
legal authority in support of his argument, and therefore has
forfeited the argument. (In re A.C. (2017) 13 Cal.App.5th 661,
672 [‘ “When an appellant fails to raise a point, or asserts it but
fails to support it with reasoned argument and citations to
authority, we treat the point as waived.’ [Citation.]”].) Father
also fails to summarize any of the relevant facts in contravention
10
of California Rules of Court, rule 8.204(a)(2)(C), which requires
that an appellant’s opening brief “[p]rovide a summary of the
significant facts . . . .”
On its merits, father’s argument fares no better. “A
section 388 petition must show a change of circumstances and
that modification of the prior order would be in the best interests
of the minor child. [Citations.] To support a section 388 petition,
the change in circumstances must be substantial.” (In re Ernesto
R. (2014) 230 Cal.App.4th 219, 223.) If the section 388 petition
does not make a prima facie showing of a change of
circumstances since the prior order, and that a modification of
the order is therefore in the child’s best interest, the petition may
be denied without an evidentiary hearing. (In re Elizabeth M.
(1997) 52 Cal.App.4th 318, 323; In re Angel B. (2002)
97 Cal.App.4th 454, 461; Cal. Rules of Court, rule 5.570(d)
[petition may be denied ex parte if it does not show that the
change would promote the child’s best interests].) This court
reviews the juvenile court’s decision not to hold a hearing for an
abuse of discretion. (In re G.B. (2014) 227 Cal.App.4th 1147,
1158.) The juvenile court did not abuse its discretion.
First, the juvenile court could not award father full custody
of A.M. A criminal protective order, as well as a civil restraining
order, prohibited father from having any contact with A.M., much
less full custody over A.M.
Second, father demonstrated no change of circumstances, a
necessary element of a section 388 petition. Father, moreover,
fails to cite any authority allowing this court to consider N.S.’s
declaration, which he filed only after the juvenile court denied
father’s petition. In any case, it does not show any change in
circumstances.
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Third, father failed to show that it would be in A.M.’s best
interest to award him full custody of A.M., the second
requirement of a section 388 petition. In short, the section 388
petition was frivolous because father presented no evidence or
cogent authority in support of either element of his petition.
B. Father Demonstrates No Error in the Denial of His
October 21, 2020 Request for a Judge Rather Than a
Commissioner to Preside
Commissioner Pete R. Navarro presided over the entire
case. On October 21, 2020, father objected to Commissioner
Navarro’s participation “for this hearing,” meaning the
October 21, 2020 hearing.4 On appeal father argues that the
commissioner sat as a referee, not a temporary judge, and as a
referee, had no jurisdiction to hear the case. Father recognizes
that if the commissioner sat as a temporary judge, the
commissioner would have the same authority as a judge. In re
Brittany K. supports father’s acknowledgment; it states: “ ‘[a]
temporary judge has full judicial powers, and his [or her] orders
are as final and nonreviewable as those of a permanent judge.’
[Citation.]” (In re Brittany K. (2002) 96 Cal.App.4th 805, 812.)
The powers of a referee, however, are more limited. (Id. at
p. 811.)
Father’s argument lacks merit for two independent
reasons. First, he impliedly waived any challenge to the
commissioner by failing to make a timely challenge. (In re
Brittany K., supra, 96 Cal.App.4th at p. 813; In re Horton (1991)
54 Cal.3d 86, 98 [full participation in proceedings and treatment
4Father’s counsel stated, “We’re not stipulating to a
commissioner for this hearing.”
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of “the commissioner as competent to rule on matters which rest
solely in the discretion of a superior court judge” constitutes an
implicit stipulation to the commissioner]; In re Courtney H.
(1995) 38 Cal.App.4th 1221, 1227.) Father participated in the
proceedings before Commissioner Navarro beginning on August
23, 2019. He did not object to the Commissioner until over a year
later, on October 21, 2020. It was too late. (In re Brittany K.,
supra, at p. 813.)
Second, father’s premise that the commissioner sat as a
referee and not as a temporary judge is incorrect. By order dated
November 27, 2019, signed by Presiding Judge Kevin C. Brazile,
and effective January 2, 2020, “each commissioner of [the Los
Angeles County Superior] Court, in addition to his or her
assignment, if any, is designated and assigned as Judge Pro
Tempore of the Juvenile Court.” (Super. Ct. L.A. County,
Jud. Order No. 2020-JUD-005-00, 2020 Juvenile Court
Assignment Order (Nov. 27, 2019) eff. Jan. 1, 2020.) At the time
father objected to the commissioner, the commissioner sat as a
temporary judge, not as a referee.
C. Father Does Not Show He Had a Right to Be
Personally Present During the October 21, 2021
Hearing and Even if He Did, Father Demonstrates No
Prejudice
Father argues that the juvenile court erred in refusing to
allow him to appear personally at the October 21, 2020 hearing.
Specifically, father contends: “While it’s perhaps laudable due to
the Pandemic that apparently all the other attorneys involved in
this case had agreed with the Los Angeles County Superior Court
to handle Dependency Hearings through WebEx, absent an Order
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from the Presiding Judge and notice, Petitioner had a right to
personally appear.”
Father’s argument is based on incorrect premises. There
was both an order from the Presiding Judge and notice to father.
At the time of the hearing there was an order from the Presiding
Judge of the Superior Court stating: “Judicial officers are urged
to avoid in-person hearings to the greatest extent possible and to
use technology to conduct hearings and other court proceedings
remotely for the duration of the state of emergency related to the
COVID-19 pandemic. However, when the interests of justice
require, judicial officers retain the discretion to require in-person
appearances.” (Super. Ct. L.A. County, Gen. Order
No. 2020-GEN-023-00, Administrative Order of the Presiding
Judge re COVID-19 Pandemic (Oct. 9, 2020) § 1(e), p. 2.)
In addition, the juvenile court’s minute order dated
September 18, 2020 recites: “364 Judicial Review Hearing is set
to [sic] October 21, 2020 at 8:30 AM in Edmund D. Edelman
Children’s Court Dept.-413. DCFS is to provide notice. Father is
ordered to be available to participate via WebEx.” (Boldface
omitted.) On September 25, 2020, DCFS served father with
notice of the October 21, 2020 hearing. The notice also states:
“Due to Covid-19, hearing dates are subject to change. In
addition, courts are conducting remote hearings, which means
that you do not need to appear in court, if you are able to
participate by telephone or video conferencing.”
Assuming arguendo that the juvenile court should have
allowed father to participate in person, father demonstrates no
prejudice. Father and his counsel participated in the hearing
through WebEx. The only ruling the juvenile court made was to
grant father’s request for a continuance of the section 364
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hearing. Thus, father obtained the relief he requested on the
only issue considered at the hearing.
D. Father’s Purported Challenge to the Removal Order
Is Not Cognizable in this Appeal
Section 249 states, “No order of a referee removing a minor
from his home shall become effective until expressly approved by
a judge of the juvenile court.” Relying on section 249, father
argues that the commissioner’s order removing A.M. from father’s
custody was void because a judge did not review the order.
Father’s challenge is not cognizable in this appeal. “ ‘A
challenge to the most recent order entered in a dependency
matter may not challenge prior orders for which the statutory
time for filing an appeal has passed.’ [Citation.]” (In re Jesse W.
(2001) 93 Cal.App.4th 349, 355.) “The rule serves vital policy
considerations of promoting finality and reasonable expedition, in
a carefully balanced legislative scheme, and preventing late-stage
‘sabotage of the process’ through a parent’s attacks on earlier
orders.” (Ibid.) A parent who fails to appeal from a removal
order forfeits the right to challenge that order and the issue
cannot be considered in an appeal from a subsequent order.
(Id. at p. 359.) Commissioner Navarro ordered A.M. removed
from father’s custody on December 11, 2019. Father never
appealed from that order, and his appeal from the denial of his
section 388 petition and from the judgment dated November 25,
2020, does not resurrect a foregone appeal from the December 11,
2019 order removing A.M. from father’s custody.
Father’s statement that the commissioner’s order was void
also lacks merit. “[T]he statute says a referee’s removal order
is not ‘effective’ until approved by a judge (§ 249); it does not say
the order is ‘void’ or ‘invalid’ if not approved.” (In re Jesse W.,
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supra, 93 Cal.App.4th at p. 357.) “Because a referee acts ‘with
the same powers as a judge of the juvenile court’ (§ 248), with or
without a judge countersigning, and the countersignature does
not reflect substantive review by the judge but only attests to the
order’s authenticity [citation], we reject the notion that lack of
compliance with section 249 deprives a referee of fundamental
jurisdiction and, in turn, invalidates further orders in the
proceedings.” (In re Jesse W., supra, at p. 359.)
DISPOSITION
The order denying father’s Welfare and Institutions Code
section 388 petition is affirmed. The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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