In re Amira A. CA2/2

Filed 12/29/20 In re Amira A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re AMIRA A. et al., Persons B301682
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. DK10281A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
HANIA A.,
Defendant and Appellant;
MARIA T.,
Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County. Steven E. Ipson, Judge Pro Tempore. Affirmed.
Daniel G. Rooney, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, and David Michael
Miller, Deputy County Counsel, for Plaintiff and Respondent.
Liana Serobian, under appointment by the Court of Appeal,
for Respondent.
_________________________
Hania A. (father) appeals an order granting full legal and
physical custody of Noah A. (Noah) to Maria T. (mother), allowing
mother to move Amira A. (Amira)1 and Noah (collectively minors)
to Minnesota,2 and restricting father’s visitation. He contends
that the order must be reversed because he was denied
procedural due process. Because he has not demonstrated that
he preserved the issue for review, or that he suffered prejudice,
we affirm.
1 Amira is sometimes referred to as Amirah in the appellate
record.
2 The juvenile court did not expressly rule that mother could
move minors to Minnesota. At most, its orders gave mother
implied permission. An implied order in a juvenile dependency
case can be reviewed on appeal. (In re Kristin W. (1990) 222
Cal.App.3d 234, 246.)
2
FACTS
Background
The Department of Children and Family Services
(Department) filed a petition pursuant to Welfare and
Institutions Code section 300, subdivisions (a), (b) and (j)3 on
behalf of minors. After it was amended by interlineation and
certain counts were dismissed without prejudice, it alleged that
minors were exposed to a risk of harm due to father’s mental
state, his use of inappropriate physical discipline, and his history
of domestic violence with mother.
The petition was sustained on December 16, 2015.
The Contested Review Hearing
The juvenile court held a contested section 364 review
hearing review on January 6, 2017, April 14, 2017, April 26,
2017, May 4, 2017, June 1, 2017, January 24, 2018, June 8, 2018,
August 17, 2018, August 24, 2018, and October 19, 2018.
Multiple witnesses testified.
The Department recommended that the juvenile court
terminate jurisdiction and grant mother and father joint legal
and physical custody of minors. The Department’s attorney
noted that the case involved allegations of father’s inappropriate
discipline of Amira, domestic violence, father’s 2015 conviction for
spousal injury, and father’s diagnosis of posttraumatic stress
disorder and obsessive-compulsive disorder. When the juvenile
court asked if there was a presumption against joint custody in
cases involving domestic violence, the Department’s attorney
stated, “There is, your honor, but the Department believes that
. . . based on all the testimony by the therapist and other
3 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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witnesses, that . . . father has been rehabilitated.” Per the
Department’s attorney, the Department did not see the “case as a
child safety case but rather a family law dispute between the
parents.” She stated, “[The Department] believes that there is no
child safety concern here. And that the parents need to resolve
their differences through Family Court.”
Father’s attorney joined the Department’s argument and
asked the juvenile court to follow the recommendation of joint
legal and physical custody. Mother’s attorney argued that father
failed to complete the case plan, there was an ongoing risk of
harm, and he should not be given shared custody of the minors.
Minors’ attorney argued that the juvenile court should grant the
parents joint legal and physical custody of Noah and, as to Amira,
grant joint legal custody but sole physical custody to mother.
The juvenile court granted mother sole legal and physical
custody of Amira, and granted father monitored visits. With
respect to Noah, the juvenile court awarded mother and father
joint legal and physical custody with the proviso that Noah’s
primary residence be with mother.4 The minute order stated that
mediation was on January 15, 2019, and a Family Law Order
was due on January 18, 2019. It stated, “Termination of
jurisdiction is stayed pending the receipt of the Juvenile Custody
Order[.]”
The Continuing and Uncontested Review Hearings;
Intervening Incidents
On June 7, 2019, the parties appeared for the ongoing
review hearing. The juvenile court entered the following orders:
4 Father appealed in case No. B294507. That appeal was
later dismissed as moot.
4
“Father is to have monitored visits [once] per week . . . at a
[Department] office. . . . The [juvenile court] modifies its prior
orders as to . . . Noah to reflect [that mother] . . . [shall] have sole
legal and sole physical custody and [f]ather [shall] have
monitored visits as reflected above, based upon [f]ather’s] conduct
in [c]ourt] this date. All prior orders remain in full force and
effect as to . . . Amira.”5
Mother and minors traveled to Minnesota on July 8, 2019.
Several weeks later, mother’s attorney submitted a walk-on
request seeking the juvenile court’s approval for mother to move
to Minnesota with minors. At an August 16, 2019, hearing, the
juvenile court informed the parties that it was inclined to allow
mother to move. Father’s attorney wanted to argue, and the
juvenile court stated, “It is too late to hear the matter now.” The
matter was continued to August 23, 2019, and then to
September 3, 2019. In the meantime, father filed a section 388
petition to change the June 7, 2019, order modifying custody and
giving mother sole legal and physical custody of Noah.
On September 3, 2019, the juvenile court denied the section
388 petition because it did not state new evidence or a change of
circumstances. The juvenile court indicated that it was inclined
5 The juvenile court later stated: “My recollection of that
incident does show that the father certainly acted in a way that
was inappropriate. My recollection is he somewhat jerked up out
of his seat. Began yelling, lunged in the direction of the mother
and her counsel, and was waving and pointing his finger. That’s
my recollection. [¶] I don’t recall the specific words, but the voice
was an elevated voice that was hostile towards that part of the
table, those persons at that part of the table. I was alarmed by
the father’s behavior.”
5
to allow mother and minors to remain in Minnesota pending a
further order.
On September 19, 2019, the parties convened again for the
ongoing review hearing. The juvenile court vacated all prior
orders. The Department recommended that the juvenile court
grant sole legal and physical custody of both minors to mother.
Its attorney explained the basis of the recommendation, stating,
“[F]ather has not benefited from the programs that he was
ordered to do, such as counseling and anger management, as
evidenced by the in-court conduct that led the [juvenile court] to
vacate findings.” The juvenile court stated that its indicated
ruling was to grant sole legal and physical custody to mother and
monitored visits to father as agreed by mother and father.6
No witnesses were called to testify.
Father’s attorney argued that father’s behavior on June 7,
2019, was a one-time occurrence and stated, “So we believe it
would be inappropriate at this time to make the orders that have
been made[.]” He asked the juvenile court to set the matter for a
hearing to determine if father’s outburst in court was an
aberration.
Also, father’s attorney presented argument, inter alia,
regarding visitation and the impact of mother moving the minors
to Minnesota. He cited In re Marriage of LaMusga (2004) 32
6 “Under section 362.4, the juvenile court may, when it
terminates jurisdiction over a case, issue an order ‘determining
the custody of, or visitation with, the child.’ The juvenile court’s
section 362.4 order may be enforced or modified by the family
court. [Citations.] Custody and visitation orders issued under
section 362.4 are sometimes referred to as ‘family law’ orders or
‘exit’ orders.” (In re Ryan K. (2012) 207 Cal.App.4th 591, 594,
fn. 5.)
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Cal.4th 1072 (LaMusga) as requiring a court to consider various
factors before allowing a custodial parent to move a child away.
He requested that mother’s move-away issue go to the Family
Law Court for a decision. If the juvenile court was not so
inclined, father’s attorney requested a continuance of a week or
two to consider the matter in light of LaMusga. The juvenile
court terminated jurisdiction and granted mother sole legal and
physical custody of minors. It further stated, “I don’t believe
. . . father has benefited from programs. Monitored visits to
. . . father with any agreed-upon monitor. If no monitor is agreed
upon, a paid professional monitor paid for by . . . father. [¶] The
[juvenile] court will allow phone calls and Skype calls, a
minimum of four times a week.” It ordered the calls to take place
at 8:00 p.m. in the time zone in which minors resided.
Father appealed on October 21, 2019, from the denial of his
section 388 petition, the order terminating jurisdiction, and the
custody orders. The dates of the orders were December 18, 2018,
January 15, 2019, January 18, 2019, March 26, 2019, March 28,
2019, April 12, 2019, May 3, 2019, June 7, 2019, June 20, 2019,
August 16, 2019, August 23, 2019, September 3, 2019,
September 19, 2019, and September 20, 2019.
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DISCUSSION
Father contends that the juvenile court denied his right to
procedural due process by modifying the custody order,
restricting his visitation with minors, and approving mother’s
move without holding contested hearings. We presume that he
contends that due process entitled him to call and cross-examine
witnesses before the juvenile court ruled.
I. Due Process; Standard of Review.
Under state and federal law, due process entitles a party to
notice and an opportunity to be heard. The opportunity to be
heard must be at a meaningful time and in a meaningful manner.
(Today’s Fresh Start, Inc. v. Los Angeles County Office of
Education (2013) 57 Cal.4th 197, 212.)
Due process requirements vary, “as not every context to
which the right to procedural due process applies requires the
same procedure. . . . Consequently, due process is a flexible
concept, as the characteristic of elasticity is required . . . to tailor
the process to the particular need. [Citations.] Thus, not every
situation requires a formal hearing accompanied by the full
rights of confrontation and cross-examination. [Citation.]” (Ryan
v. California Interscholastic Federation-San Diego Section (2001)
94 Cal.App.4th 1048, 1072.)
“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. [Citation.]” (Ingrid E. v.
Superior Court (1999) 75 Cal.App.4th 751, 756–757.)
The denial of procedural due process is a legal question
subject to de novo review. (Severson & Werson, P.C. v. Sepehry-
Fard (2019) 37 Cal.App.5th 938, 944.) If there is a violation of
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due process, reversal is not required if it was harmless beyond a
reasonable doubt. (In re Enrique G. (2006) 140 Cal.App.4th 676,
686–687.)
II. Modified Custody Order.
Father did not preserve his objection to the modified
custody order because he did not raise it below.
“A prerequisite to raising an issue for appellate review is
an objection in the trial court. . . . The rule also requires the
objection be made on the same grounds urged on appeal.” (People
v. Derello (1989) 211 Cal.App.3d 414, 428.) In People v. Partida
(2005) 37 Cal.4th 428, 435, the court “held that constitutional
arguments raised for the first time on appeal are not forfeited if
they do not invoke reasons different from those the trial court
was asked to apply, but merely assert that the trial court’s act or
omission, to the extent erroneous for the reasons actually
presented to that court, ‘had the additional legal consequence of
violating’ the Constitution. [Citation.]” (People v. Farley (2009)
46 Cal.4th 1053, 1095.)
In his reply brief, father cites In re S.B. (2004) 32 Cal.4th
1287, 1293 & fn. 2 (S.B.) to support a theory that he preserved
his constitutional objection by consistently raising the issues of
visitation, custody and minors’ residency, and by opposing the
juvenile court’s rulings on those matters. He essentially contends
that if he objected to a ruling on one specific ground, that
operates as a placeholder so that he can raise any other
conceivable ground on appeal. On page 1293, S.B. only states the
accepted and unremarkable proposition that the forfeiture rule
applies in dependency matters. (Id. at p. 1293.) Footnote 2
provides: “Although the loss of the right to challenge a ruling on
appeal because of the failure to object in the trial court is often
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referred to as a ‘waiver,’ the correct legal term for the loss of a
right based on failure to timely assert it is ‘forfeiture,’ because a
person who fails to preserve a claim forfeits that claim. In
contrast, a waiver is the ‘“‘intentional relinquishment or
abandonment of a known right.”’ [Citations.]” (Id. at p. 1293,
fn. 2.) Nothing in S.B. establishes that a due process objection is
preserved when a party objects to or otherwise opposes rulings on
other grounds. We therefore conclude that S.B. does not aid
father’s appeal.
III. Visitation.
Insofar as father suggests that the September 19, 2019,
order restricted his visitation without a contested hearing, he has
not demonstrated that he objected at the September 19, 2019
hearing to a violation of his procedural due process rights, i.e., a
denial of the opportunity to call or cross-examine witnesses. Nor
did he demonstrate that he sought a hearing to introduce new
evidence. Regardless, he has not attempted to demonstrate that
he suffered prejudice. Finally, at the September 19, 2019,
hearing, father’s attorney had ample opportunity to argue
visitation issues.
IV. Approval of Mother’s Move.
Father suggests that he was denied procedural due process
because he was not given a separate hearing to present new
evidence regarding mother’s move. He did not raise a due
process objection below, so the issue is forfeited. Nor has he
attempted to show prejudice. Also, at the September 19, 2019,
hearing, father did not inform the juvenile court that he had new
evidence to introduce.
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V. Other Issues.
To the degree father raises issues other than procedural
due process, we have not considered them. In his introduction,
he states only that he was denied due process without contested
hearings. In his argument, he has just two headings, each of
which pertains to due process. Each point should appear under a
separate heading or it need not be considered by the reviewing
court. (Cal. Rules of Court, rule 8.204(a)(1)(B); Heavenly Valley v.
El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th
1323, 1345, fn. 17.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
__________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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