G.M. v. Super. Ct. CA4/2

Filed 3/5/21 G.M. v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
G.M.,
Petitioner, E076411
v. (Super.Ct.No. J281490)
THE SUPERIOR COURT OF SAN OPINION
BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Erin K. Alexander,
Judge. Petition denied.
Clark & Le and Mark Oliver for Petitioner.
No appearance for Respondent.
Michelle D. Blakemore, County Counsel, and Glenn C. Moret, Deputy County
Counsel for Real Party in Interest.
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Children’s Advocacy Group, Inc. and Brian Bitker for the Minors.
At a contested 18-month review hearing, the juvenile court terminated
reunification services for G.M. (Mother) as to her two minor children, M.B. (age 6) and
N.D. (age 1), and set a hearing under Welfare and Institutions Code section 366.26
(undesignated statutory references are to this code). Mother petitions for extraordinary
writ review of the order setting that hearing. (§ 366.26, subd. (l); Cal. Rules of Court,
rule 8.452.) She argues that the juvenile court erred by admitting evidence obtained
through minors’ counsel’s allegedly improper investigation of Mother’s “confidential
address.” We conclude that Mother’s argument is meritless, and we accordingly deny the
petition.
BACKGROUND
The original petitions under section 300 were filed on June 25, 2019. On
October 22, 2019, the juvenile court took jurisdiction over both children on the basis of
sustained allegations of ongoing domestic violence between Mother and N.D.’s presumed
father, Mother’s failure to protect the children from that violence, and M.B.’s biological
father’s incarceration and inability to arrange appropriate care for his child. (§ 300,
subds. (b), (g).) The jurisdiction/disposition report indicated that the violence in the
home was often fueled by N.D.’s father’s alcohol use.
The court removed the children from their parents’ custody, ordered reunification
services for Mother and N.D.’s father, and bypassed services for M.B.’s father on the
basis of section 361.5, subdivision (e). The case plans included domestic violence
programs for Mother and N.D.’s father and substance abuse treatment and testing for
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N.D.’s father. The court ordered monitored visits for Mother and N.D.’s father but no
visits for M.B.’s father, and Mother and N.D.’s father were to visit separately. The
fathers are not parties to this writ proceeding.
At the six-month review hearing on May 11, 2020, San Bernardino County
Children and Family Services (CFS) recommended that reunification services continue
for Mother and N.D.’s father, and the court followed that recommendation. The court
also ordered, on the basis of a stipulation by the parties, that (1) Mother would have
unsupervised visits, with CFS discretion to liberalize to overnights, weekends, or an
extended visit in the mother’s home; (2) N.D.’s father would have supervised visits, with
CFS discretion to liberalize to unsupervised visits upon his completion of outpatient drug
treatment; (3) if the children were placed with Mother, then minors’ counsel and their
social workers would be allowed access to the home; and (4) the fathers were not to be in
or around the home, and Mother was not to supervise the fathers’ visits.
In the status review report for the 12-month review hearing, CFS recommended
return of the children to Mother and termination of services for N.D.’s father. On the
original hearing date of October 8, 2020, the court indicated that evidence (including
videos) had emerged showing that, contrary to Mother’s statements, she continued to
have contact with N.D.’s father, including at her home during a visit. The hearing was
continued for minors’ counsel’s and N.D.’s father’s contests.
In an addendum report for the contested hearing, CFS changed its
recommendation to continued reunification services for both Mother and N.D.’s father.
The changed recommendation was based on evidence developed by minors’ counsel
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indicating, among other things, that N.D.’s father was recently residing in Mother’s home
and that Mother was coaching M.B. not to disclose information about N.D.’s father
because Mother “will get in trouble.”
On November 3, 2020, the date originally set for the contested hearing, the
recommendation changed again, this time to termination of services for both Mother and
N.D.’s father, and the court continued the hearing for the parents’ contest. Because the
continued hearing date would be after the statutory date for the 18-month review hearing,
the court and the parties agreed that it would actually be a contested 18-month review
hearing.
CFS subsequently filed a new status review report, recommending that services for
Mother and N.D.’s father be terminated and a hearing under section 366.26 be set for
both children, with a plan of adoption for N.D. and legal guardianship for M.B. The
recommendation was again based on video and other evidence of N.D.’s father’s ongoing
contacts with Mother and presence at her home, as well as Mother’s continuing denials of
those facts and her coaching of M.B. CFS also provided “Additional Information to the
Court” describing facts showing that Mother “continues to contradict her own statements,
and continues to be deceptive.” N.D.’s father’s substance abuse counselor reported that
N.D.’s father was legally intoxicated at his intake appointment on December 2, 2020, and
tested positive again on December 10, 16, and 18.
At the contested hearing on January 12, 2021, Mother’s counsel objected to
admission of any evidence derived from minors’ counsel’s investigation of Mother’s
home, because Mother “had made her new address confidential after she had moved to
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her home.” Mother’s counsel relied on rule 8.47(c) of the California Rules of Court, as
well as Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 (Rico). The court
overruled the objection, admitted CFS’s reports, and granted a request for judicial notice
of prior findings and orders. No party called any witnesses or introduced additional
evidence.
The court observed that Mother and N.D.’s father had participated in services but
did not appear to have made much progress—“we’re in the same situation we found
ourselves in a year-and-a-half ago with a significant alcohol issue on behalf of the father,
and a mother who’s unwilling to end that relationship or be honest about its status and
[who] continue[s] to subject the children to that relationship.” The court terminated
reunification services for both parents and set a hearing under section 366.26 as to both
children.
DISCUSSION
The only argument Mother raises in her petition is the same argument she
advanced in the trial court, namely, that because her residence address was confidential, it
was improper for minors’ counsel to investigate that residence, so all evidence derived
from that investigation should have been excluded. The argument lacks merit. There is
no factual or legal support for the proposition that Mother’s address should have been
kept confidential from minors’ counsel.
Mother asserts that she “had chosen to keep her new address confidential,” as
reflected in CFS reports for hearings on October 8 and November 3, 2020 (the original
and continued 12-month review hearing dates), but Mother provides no citation to the
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record on appeal to support that assertion. Both reports state addresses for the fathers but
list Mother’s as “Confidential Address.” The reports thereby complied with subdivision
(b) of section 302, which requires CFS to provide copies of its reports to both parents and
consequently requires CFS to “keep confidential the address of any parent who is known
to be the victim of domestic violence.” Nothing in the record indicates that the listing of
Mother’s address as confidential was anything more than statutory compliance to protect
Mother from N.D.’s father. Mother does not cite any evidence that she requested or the
court ordered that her address be kept confidential from anyone, let alone from minors’
counsel. Thus, as a factual matter, we find no support for the assertion that Mother’s
address was (or was requested or ordered to be) confidential from minors’ counsel.
Moreover, as the trial court recognized, minors’ counsel has a statutory duty to
investigate the facts relevant to the children’s safety, protection, and welfare. (§ 317,
subd. (e)(1).) As of the six-month review hearing, Mother was having unsupervised
visits at her home, CFS had discretion to liberalize those visits to overnights, weekends,
or an extended visit, and Mother was requesting that the children be returned to her
custody at that residence. Minors’ counsel therefore had a statutory duty to investigate
whether the residence was safe and appropriate, both for visitation and for possible
return. Mother cites no authority for the proposition that, under those circumstances, it
was legally permissible for her address to be kept confidential from minors’ counsel.
Had Mother or the court tried to keep that information from minors’ counsel, they would
have been obstructing minors’ counsel’s statutory duty to investigate.
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The legal authorities that Mother does cite are inapposite. First, she cites rule
8.47(c) of the California Rules of Court. The rule addresses the treatment of confidential
records on appeal. (Cal. Rules of Court, rule 8.47.) For purposes of the rule, a
“confidential” record is defined as “a record that, in court proceedings, is required by
statute, rule of court, or other authority except a court order under rules 2.550-2.551 or
rule 8.46 to be closed to inspection by the public or a party.” (Cal. Rules of Court, rule
8.45(b)(5).) Mother cites no legal or factual support for the claim that her address was
confidential within the meaning of the rule, and we are aware of none. And even if her
address were confidential with the meaning of rule, the rule says nothing about how the
address should have been treated in the trial court—the rule addresses only the handling
of confidential records on appeal. (Cal. Rules of Court, rule 8.47.)
Second, Mother cites Rico. But that case says nothing about the confidentiality of
a parent’s address in a dependency case. Rather, it addressed “what action is required of
an attorney who receives privileged documents through inadvertence and whether the
remedy of disqualification is appropriate.” (Rico, supra, 42 Cal.4th at p. 810.)
Mother argues that Rico “does not simply apply to attorney-client privilege
information” but rather applies to confidential information more broadly, such as
Mother’s address here. But in describing the scope of its holding, the Supreme Court in
Rico explained that it applied “‘to documents that are plainly privileged and confidential,
regardless of whether they are privileged under the attorney-client privilege, the work
product privilege, or any other similar doctrine that would preclude discovery based on
the confidential nature of the document.’” (Rico, supra, 42 Cal.4th at p. 817, fn. 9, italics
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added.) For reasons we have already explained, we are not aware of any doctrine that
would have precluded minors’ counsel from discovery of Mother’s address (or
documents containing it) under the circumstances presented here.
Rico consequently has nothing to do with this case. Mother’s address was not
privileged or confidential information that inadvertently came into minors’ counsel’s
possession. It was information to which minors’ counsel was affirmatively entitled,
because minors’ counsel’s clients were having unsupervised visits at Mother’s home.
For all of these reasons, Mother’s argument has no factual or legal basis. The trial
court properly admitted the evidence developed through minors’ counsel’s appropriate
and statutorily required investigation.1 We accordingly deny Mother’s petition.
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
1 For identical reasons, Mother’s argument that minors’ counsel behaved unethically
and should be disqualified is wholly without merit.
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