In re A.L. CA2/1

Filed 5/23/23 In re A.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.L., a Person Coming Under B322684
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCJP01348)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hernan D. Vera, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant.
Office of the County Counsel, Dawyn R. Harrison, County
Counsel, Kim Nemoy, Assistant County Counsel, Sarah Vesecky,
Deputy County Counsel, for Plaintiff and Respondent.
___________________________________
In these dependency proceedings D.A. (mother), appeals
from a juvenile court’s order terminating jurisdiction concerning
A.L., her daughter, contending the court erred in denying her an
evidentiary hearing, terminating jurisdiction, and fashioning the
visitation order. We affirm.
BACKGROUND
The family consists of mother, D.L. (father, who is not
party to this appeal), and the now five-year-old A.L.
A.L. was born in June 2017 at 25 weeks gestation and
resided with mother until February 2018, when mother was
arrested for domestic violence against father. A.L. was detained
and placed with father, who hitherto had had no contact with the
child.
Mother had a history of severe mental health problems,
and she and A.L. were the subject of prior dependency
proceedings. (In re A.L. (Oct. 31, 2019, B296028) [nonpub. opn.];
In re A.L. (Mar. 24, 2023, B320645) [nonpub. opn.].)
At around 10:00 p.m. on March 8, 2022, mother was seen
pacing up and down the street with A.L. in a stroller, then left
A.L. and went into the middle of the street to lie down. A.L. got
out of the stroller by herself and stood looking at her mother.
When a sheriff’s deputy arrived, mother was again pushing the
child in a stroller, and told the deputy to get away from her. The
deputy tried to talk to mother but she cursed, was aggressive,
and refused to listen.
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Mother was assessed and placed on a Health and Safety
Code section 5150 hold.
A.L. reported that she was afraid of mother because she
was “bad,” made her “go to the bathroom” in a diaper, and
pushed, scratched and hit her on her butt and face, and once hit
her in the eye. Regarding the incident of March 8, 2022, A.L.
stated, ‘ “[S]he was almost going to get ran over by the cars that
were passing. She was laying in the middle of the street and at
first, she was saying some things that I did not understand and
then she was not saying anything. I was in the stroller on the
sidewalk. I was scared and cold, I did not know what she was
doing or why. Then she stood up like this [A.L. was sitting on a
couch and got up quickly]. No cars hit her. Then the police
came.’ ”
A.L. reported she did not like to call mother “ ‘mom,’ ” but
would refer to her only by her first name. She stated, “ ‘[Mother]
does not like me and I don’t think that she loves me either. I like
being . . . with my dad, I know he loves me, he never hits me.’ ”
At an interview in March 2022, mother was cooperative
and at first presented appropriately. However, towards the end
of the interview she kept getting up from her chair, tapping her
chest, indicating she was feeling hot, and pacing and making
punching motions.
Maternal relatives reported Mother had a history of mental
health issues and should not be left alone with A.L. The
maternal grandmother reported mother had emotionally
traumatized the child, would not allow her to speak to anyone or
play outside, and made her wear a diaper while she was in
mother’s care. The maternal grandmother reported mother was
“mentally destroying” the child. She stated she did not know
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father, but reported the child loved father and spoke highly of
him.
Father reported that he kept his telephone on at all times
because he did not know when the next incident with mother
would occur, and he would be called to pick up A.L. He was
concerned that mother exposed the child to danger but he did not
know how to help because in prior dependency proceedings he
was granted only 50/50 custody. He said, “ ‘It is a double edged
sword. If I tried taking her from [mother], I would be violating
orders that your department put and I would probably be accused
of kidnapping or something. If I do obey the orders, as I have
been, then I am failing to protect my child, so help me
understand this. How about we do not make the same mistake
again. Help me help my daughter not be put in a dangerous
situation, for her to be out of harm[’]s way. She has always been
safe with me. If we all know this about the mother, why does she
keep getting chances. She can check all the boxes, complete
services, but she cannot grasp what she is learning. There has
never been a problem with [A.L.] here in my care, but here we
are, two years later, because of [mother’s] issues and enough is
enough.’ ”
Father’s wife and a maternal aunt both reported having
seen scratches on A.L.’s face.
Mother denied having any mental health issues, refused to
release her medical records, denied any erratic behavior, and
declined services from DCFS.
A social worker from mother’s prior dependency
proceedings reported that mother’s mental health was unstable,
and although she completed all her programs, mother did not
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grasp the information and did not apply what she learned into
everyday life.
The Los Angeles County Department of Children and
Family Services (DCFS or the department) detained A.L. from
mother and released her to father, who later filed for a temporary
restraining order to protect him from mother. A.L. reported that
she did not want to ever go back to mother’s home.
A. Prior Appeal
On May 9, 2022, the juvenile court found A.L. was
described by Welfare and Institutions Code section 300,
subdivisions (a) and (b), removed the child from mother’s custody,
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and ordered mother to participate in services. Mother appealed
the orders, which we affirmed.
B. Current Appeal
On August 8, 2022, the juvenile court held a progress
hearing, in which both mother and father participated.
Counsel for DCFS represented that all issues giving rise to
the department’s intervention had been resolved, and
recommended that the court terminate jurisdiction with a family
law order that included monitored therapeutic visitation. A.L.’s
counsel concurred and stated that his office had visited the child
and found no safety issues in her placement with father, where
therapy was ongoing.
Father’s counsel joined the others and represented that
A.L. did not want to attend visits with mother, and father was
not going to force her. Father’s counsel agreed that any visits
should occur in a monitored therapeutic setting.
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Undesignated statutory references will be to the Welfare
and Institutions Code.
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Mother’s counsel objected that the case was on calendar
only for a progress report, not a section 364 status review hearing
where jurisdiction could be terminated.
Counsel stated that mother had a right to contest
termination despite a prior indication by the court in an off-the-
record conference that she would not be permitted to testify or
present evidence. Counsel indicated that mother wished “to
explain to the court what has been going on and why.” Counsel
represented that his “communications with [mother] and what
[he had] learned from her and her communications with [DCFS]
[were] very different,” which “should at the very least be
incredibly concerning to the court in regards to why [DCFS] [was]
so eager to close this case.” Mother’s counsel asked that the court
continue the matter for a status review/termination hearing so
mother could present evidence pertaining to termination and
terms of any custody order. Finally, mother’s attorney asked that
DCFS provide her with its delivered service logs.
The court found that A.L. was “safe with father and that
[dependency] conditions no longer exist.” It therefore terminated
jurisdiction with an order granting father sole legal and physical
custody of A.L. and ordering monitored visits for mother in a
therapeutic setting. However, the court stayed the order pending
receipt of a stipulated custody order. The court stated that this
further evidence would not be “for the purposes of relitigating
whether the case should close” but only “to provide evidence in
support of any differences” in the written closing order to be
submitted.
The court stated: “[C]ounsel are to meet and confer on that
[order], and if there is a disagreement, then counsel are to file
competing [orders]. And I’m going to give mother’s counsel an
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opportunity to present any other . . . evidence in support of any
differences in the [order].”
The court informed mother that any visits would be in a
therapeutic setting, but it could not “supervise a case for months
and—or even years to make sure that the parents can both be in
a position to resolve their issues” such that visitation actually
occurs.
Mother appeals from the August 8, 2022 findings and
orders, including the orders terminating jurisdiction with a
custody order, granting father sole legal and physical custody,
and ordering monitored visits in a therapeutic setting.
C. Post-Appeal Record
After mother filed her notice of appeal, the parents
submitted competing custody orders. The proposed orders both
provided for father to have physical and legal custody of A.L.,
with supervised visits for mother in a therapeutic setting until
the child’s therapist recommended that visits be liberalized to
occur in a monitored, neutral setting. Both proposed orders
provided for a neutral monitor and stated that visits would be
facilitated by a third party who would provide transportation.
Both proposed orders included a JV-206 “Reasons For No
Or Supervised Visitation” form stating no or supervised visitation
could occur if a parent failed to make substantial progress in
parenting classes and individual counseling. Both stated:
“Mother to have 730 evaluation; take all prescribed medications.”
Mother’s proposed order included two additional provisions:
(1) “Mother’s monitored visits in a therapeutic setting to
commence within a month of this order”; and (2) “Mother’s visits
to occur during the minor’s regular therapy appointments with
minor’s primary therapist.”
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On August 17, 2022, the juvenile court signed and filed
father’s proposed custody order, lifted the stay, and terminated
jurisdiction. No parties were present when it did so, and the
hearing was not reported.
DISCUSSION
A. Deprivation of a Contested Hearing
Mother contends the juvenile court violated her due process
right to present evidence by denying her request for a contested
evidentiary hearing. We disagree.
A parent has due process rights in dependency proceedings.
(See David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777.)
“[D]ue process ‘is a flexible concept which depends upon the
circumstances and a balancing of various factors.’ [Citations.]
Even where due process rights are triggered, it must always be
determined ‘what process is due.’ [Citation.] ‘We look to the
private interest that will be affected by the agency’s action, the
risk of an erroneous deprivation of that interest, the interest in
informing parents of the basis for and consequences of the action
and in enabling them to present their side of the story, and the
agency’s interest in expeditious decisionmaking as affected by the
burden caused by an additional procedural requirement.’
[Citation.] Accordingly, our courts have recognized that
‘[d]ifferent levels of due process protection apply at different
stages of dependency proceedings.’ ” (In re A.B. (2014) 230
Cal.App.4th 1420, 1436.)
A parent may offer evidence on whether continued
supervision is necessary. (§ 364, subd. (c).) The court may
condition the parent’s right to a contested hearing on this
evidence on a sufficient offer of proof. (In re T.S. (2020) 52
Cal.App.5th 503, 517.)
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We review dependency proceedings for harmless error. (In
re James F. (2008) 42 Cal.4th 901, 918-919.)
Here, the court terminated jurisdiction and made its
custody order at the August 8, 2022 hearing. The only
opportunity the court afforded mother to submit evidence related
to disagreements over how to memorialize the order the court
made at the hearing; indeed, in permitting mother to provide
further evidence the court made clear it was “not for the purposes
of relitigating whether the case should close” but only “to provide
evidence in support of any differences” in the written closing
order. As the court already made its order and said it wasn’t
going to reconsider it, we don’t believe this opportunity to present
evidence preserved mother’s due process rights.
However, a court may require a proffer before deciding
whether to hold an evidentiary hearing under subdivision (c) of
section 364. (E.g., In re T.S., supra, 52 Cal.App.5th at pp. 516-
517; In re A.B., supra, 230 Cal.App.4th at p. 1439 [court is “not
require[d] . . . as a matter of due process to hold an evidentiary
hearing without regard to an offer of proof”].)
Here, the court apparently held a conference off the record
where mother’s counsel proffered proposed testimony, and the
court indicated whatever was proffered was not sufficient to
require an evidentiary hearing. On the record, mother’s counsel
said only that the evidence would go to mother’s communications
with DCFS and why DCFS was eager to close the case. In our
view, the juvenile court could reasonably reject this proposed
evidence as irrelevant to whether continued jurisdiction over the
minor was necessary, and to what the custody order should
be. Because the proffer did not justify an evidentiary hearing,
the court did not err in failing to hold one.
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B. Termination of Jurisdiction
Mother contends the court abused its discretion when it
terminated jurisdiction because continued supervision was
necessary to facilitate therapeutic visits. We disagree.
“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.” (§ 364, subd. (c).) The party
seeking continued jurisdiction bears the burden of proof to
establish that continuing jurisdiction is necessary. (In re Aurora
P. (2015) 241 Cal.App.4th 1142, 1146, 1163.) Absent a contrary
showing, the default result is termination of dependency
jurisdiction. (Id. at p. 1156.)
We review a juvenile court’s decision to terminate
jurisdiction and to issue an accompanying exit order for an abuse
of discretion. (In re C.W. (2019) 33 Cal.App.5th 835, 863.)
Here, the uncontroverted evidence showed that father was
meeting all of A.L.’s needs and she was safe in his care. This
evidence justified terminating jurisdiction.
Although mother’s counsel argued at the August 8, 2022
progress hearing that mother wished “to explain to the court
what has been going on and why,” and intimated that DCFS was
too “eager to close this case,” mother offered no explanation why
jurisdiction should not be terminated and no evidence suggesting
continued supervision was necessary.
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Mother argues for the first time on appeal that DCFS
needed additional time to begin and oversee therapeutic visits
between mother and A.L. because no visits had occurred since the
March 2022 detention, and father allowed the child to determine
whether she would visit with mother. But mother failed to make
this argument below, much less provide any evidence supporting
the proposition that father would refuse to comply with the exit
order.
C. Visitation Order
Mother contends the exit order was an abuse of discretion
because it incorrectly reported she had not made substantial
progress in a parenting class and individual counseling,
incorrectly referenced a section 730 evaluation, and reduced the
frequency and duration of visits. We disagree.
When the juvenile court terminates jurisdiction, it may
issue an order for custody and visitation. (§ 362.4; In re Chantal
S. (1996) 13 Cal.4th 196, 202-203.) “The juvenile court has broad
discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accordance
with this discretion.” (In re Corrine W. (2009) 45 Cal.4th 522,
532.) “We review an order setting visitation terms for abuse of
discretion. [Citations.] We will not disturb the order unless the
trial court made an arbitrary, capricious, or patently absurd
determination.” (In re Brittany C. (2011) 191 Cal.App.4th 1343,
1356.)
Here, every provision of the exit order to which mother now
objects was contained in the proposed order she submitted to the
court. She thus acquiesced to the provisions and cannot now
complain about them. (See In re S.B. (2004) 32 Cal.4th 1287,
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1293; In re Richard K. (1994) 25 Cal.App.4th 580, 590 [“He who
consents to an act is not wronged by it”].)
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
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