In re Jacob S. CA2/2

Filed 3/1/21 In re Jacob S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 Jacob S., a Person Coming B308452
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP08124)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOSE V.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Stephen C. Marpet, Judge Pro Tempore. Affirmed and
remanded with directions.
Janelle B. Price, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, and Stephanie Jo
Reagan, Principal Deputy County Counsel, for Plaintiff and
Respondent.
In this unopposed appeal, appellant Jose V., biological father of
Jacob S., appeals from the juvenile court’s juvenile custody order after
termination of dependency jurisdiction on the grounds that it failed to
reflect the juvenile court’s oral order that Jose V. continue monitored
visits with Jacob. We agree and remand for proceedings in accordance
with this opinion.
FACTS AND PROCEDURAL HISTORY
A detailed recitation of the underlying facts is unnecessary for
the determination of this appeal. We summarize the relevant factual
and procedural history as follows.
Jacob S., born in 2017, is the legal child of married couple Laura
S. (mother Laura) and Nery S. (mother Nery). The two mothers broke
up and began living separately in 2019, with mother Laura having full
custody of Jacob and mother Nery having overnight visits. In June
2019, mother Laura obtained a permanent restraining order against
mother Nery for herself and Jacob.
On December 12, 2019, the juvenile court granted a request for
removal warrant order by the Department of Children and Family
Services (Department) to remove Jacob from the care of mother Nery.
On December 20, 2019, the Department filed a dependency petition on
behalf of Jacob S., identifying his parents as Laura S. and Nery S. The
petition alleged that on prior occasions mother Nery was physically
violent with mother Laura, that mother Nery endangered Jacob by
allowing him to be around an adult companion who had violent
behavior and substance and mental health issues, and that mother
Nery failed to provide appropriate supervision for Jacob, including
leaving him in the care of an unrelated minor who was abusing
marijuana.
At the detention hearing, the juvenile court declared mother
Laura to be Jacob’s presumed mother, detained Jacob from mother
Nery, and placed him with mother Laura. Based on mother Nery’s
statement of parentage questionnaire, the court found appellant to be
an alleged father of Jacob.
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DNA testing subsequently determined appellant was Jacob’s
biological father, and appellant filed a separate action in family court
seeking shared legal and physical custody of Jacob. Appellant declared
that he was unaware Jacob was his biological son until the
Department’s petition; mother Laura reported that mother Nery had
claimed she became pregnant with Jacob through donor insemination.
On August 19, 2020, the juvenile court ordered appellant to have
reasonable monitored visits with Jacob. No party objected to the
court’s visitation order. The Department subsequently developed a
visitation schedule for appellant, with visits scheduled twice weekly, on
Wednesdays from 5:30 p.m. to 7:30 p.m. and Sundays from 10:00 a.m.
to noon.
On September 1, 2020, the juvenile court denied a motion by
appellant to be declared Jacob’s presumed father. The juvenile court
found appellant had not made a sufficient showing to elevate his status
beyond that of Jacob’s biological father, although the issue could be
addressed again “once he’s established a better connection with his
son.” The juvenile court ordered appellant’s visits to remain as
previously ordered and the Department given discretion to liberalize,
with no objection to visitation made by any party.
At the combined jurisdictional and disposition hearing on
September 4, 2020, the juvenile court struck the allegations of domestic
violence and sustained the petition, declared Jacob a dependent of the
court, and ordered him removed from mother Nery and placed with
mother Laura. Finding no need for further jurisdiction, the juvenile
court then ordered jurisdiction terminated, with a juvenile custody
order granting mother Laura sole legal and physical custody of Jacob
and monitored visits for both mother Nery and appellant.
The juvenile court denied appellant’s request for unmonitored
visits, stating: “At this point, his visits are still going to remain
monitored. He’s had no relationship with this child and he needs to—
he can go to family court and show a judge over there he’s complied
with monitored visits and has completed a parenting class to show he
knows how to take care of kids and they can assess him for that limited
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purpose.” No party objected to appellant continuing his monitored
visitation with Jacob. The juvenile court also clarified that mother
Laura could monitor appellant’s visits.
The juvenile court’s minute order from September 4, 2020, states:
“The mother Nery S[.] and father are allowed reasonable monitored
visits as arranged in the JCO [Juvenile Custody Order].” However,
there was no arrangement made for appellant’s visitation in any
subsequent juvenile custody order.
On September 10, 2020, the juvenile court signed three virtually
identical versions of a juvenile custody order. Each of the signed JCO’s
expressly provides for monitored visitation of at least two visits a
month for mother Nery and identifies mother Nery and mother Laura
as parents bound by the order. One version differs in that it is
interlineated in handwriting that also identifies appellant as a parent
bound by the order and includes his mailing address (but does not
identify him in the parentage section as a biological parent). There
were no parties or attorneys present on September 10, 2020, and the
juvenile court waived the presence of the court reporter. The record is
thus silent as to which JCO was adopted or why three were filed on the
same day. However, all three versions omit any mention of visitation
for appellant.
This appeal followed.
DISCUSSION
Appellant does not challenge the juvenile court’s paternity
finding or order denying him presumed father status. Nor does he
contest the court’s requirement that his visitation with Jacob be
monitored. Merely, he contends the juvenile custody order(s) and
minute orders are inconsistent with the court’s oral visitation order and
must therefore be reversed and remanded for clarification and
amendment to conform to the oral order and to the juvenile court’s
intent.
This appeal is unopposed. At disposition, the Department
neither advocated for, nor against, granting appellant visitation upon
termination of dependency jurisdiction. In a letter filed with this court,
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the Department noted that “appellant’s appeal appears to be an effort
to correct a clerical error,” and stated that the Department took no
position and would not be filing a formal respondent’s brief.
Where, as here, a juvenile court terminates dependency
jurisdiction, Welfare and Institutions Code section 362.4 authorizes the
court to issue visitation orders. (See Welf. & Inst. Code, § 362.4,
subd. (a); In re Chantal S. (1996) 13 Cal.4th 196, 202–203; In re
Armando L. (2016) 1 Cal.App.5th 606, 616.) “Where a juvenile court
orders visitation, the court shall specify the frequency and duration of
visits. [Citation.] The time, place, and manner of visitation may be left
to the legal guardians, but the guardians shall not have discretion to
decide whether visitation actually occurs.” (In re Grace C. (2010) 190
Cal.App.4th 1470, 1478; accord, In re M.R. (2005) 132 Cal.App.4th 269,
274; In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313–1314.)
Here, the oral pronouncement continuing appellant’s monitored
visitation and the September 4 minute order stating that appellant
shall have “reasonable monitored visits as arranged in the JCO” are
inconsistent with the final juvenile custody order(s), which lack any
specific visitation provision for appellant. “It may be said . . . as a
general rule that when, as in this case, the record is in conflict it will be
harmonized if possible; but where this is not possible that part of the
record will prevail, which, because of its origin and nature or otherwise,
is entitled to the greater credence [citation]. Therefore whether the
recitals in the clerk’s minutes should prevail as against contrary
statements in the reporter’s transcript, must depend upon the
circumstances of each particular case.” (In re Evans (1945) 70
Cal.App.2d 213, 216.) Such error may be corrected at any time. (People
v. Smith (1983) 33 Cal.3d 596, 599–600.) In this case, the reporter’s
transcript, with its greater specificity and repeated confirmation and
clarification by counsel on the record of appellant’s ongoing monitored
visitation, is entitled to greater credence.
We conclude that the clear oral pronouncement of the visitation
order cannot be reconciled with the juvenile court’s written orders,
which call for reasonable monitored visits in the minute order “as set
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forth in the JCO,” but then fail to set a minimum number of visits in
any juvenile custody order or provide that appellant could visit Jacob
regularly. (In re Kyle E. (2010) 185 Cal.App.4th 1130, 1136 [at
minimum, visitation order should specify a minimum number of visits
or provide for regular visitation].) The juvenile court’s oral order was
clear, and the parties do not dispute that appellant’s monitored visits
with Jacob would continue. Thus, the discrepancy about which
appellant complains appears to be the result of a drafting error in
which his visitation and status as biological father was omitted from
the final juvenile custody order.
Given the lack of necessary detail in the juvenile custody order(s),
we must remand for further proceedings at which the juvenile court
shall amend the juvenile custody order to include the terms and
conditions applicable to appellant’s monitored visitation, including, but
not limited to, a minimum number of visits or that visitation is to occur
at some regular frequency and duration.
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DISPOSITION
The matter is remanded to the juvenile court for the sole purpose
of clarifying and correcting its juvenile custody order consistent with
this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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