IN RE: DESTINY C. et al. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

In this, her second appeal, mother, S. B., appeals from the order of the juvenile court that terminated jurisdiction and granted sole legal and physical custody of daughters Destiny (age 10) and Dominique (age 8) to their father.   (Welf. & Inst.Code, § 364.) ¹  Mother contends that she was not given notice of the hearing at which the order was made and that the exit order was improper.   We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Jurisdiction and disposition orders

In December 2008, we issued our first opinion affirming the juvenile court's orders under the Indian Child Welfare Act (§ 224 et seq.).   We take the following facts from that opinion:  “The Department of Children and Family Services (the Department) detained the children in February 2008 and filed a petition based on mother's allegations that father, Jorge C.,[ ² ] physically abused the children.․

“In advance of the jurisdictional hearing, the Department learned that mother had asked the children to lie about their father abusing them and that it was mother who behaved in a manner that was extremely abusive to the girls.   The Department recommended that the children be released to father as it was in their best interest.   Accordingly, the court ordered the girls released to father.   After the court dismissed the petition, the Department filed an amended petition containing the allegation that mother had failed to protect the children and had been emotionally abusive. (§ 300, subd. (b).)

“At the jurisdiction hearing in May 2008, the juvenile court sustained the allegation against mother and declared the children dependents of the court. (§ 300, subd. (b).)  The court detained the children from mother's custody and placed them in father's home.   Accordingly, the court ordered reunification services for mother and family maintenance services for father.   The children remain in father's custody.”

Mother's court-ordered reunification plan consisted of parenting classes, individual counseling, and conjoint counseling with the children.   Additionally, the juvenile court ordered mother to undergo a psychological evaluation under Evidence Code section 730 with Dr. Goodwin-Matthews.   The court allowed mother to have monitored visits every other Saturday for four hours per visit and monitored telephone calls on alternate weeks.   Finally, the court directed the Department to provide mother with transportation to Bakersfield where the children were residing with father.

2. The reunification period

a. The six-month review period (§ 366.21, subd. (e))

In the first six months of reunification, from May to December 2008, mother failed to provide the Department with information about the programs she was participating in.   Although her attorney ordered mother to give the social worker copies of certificates of completion, she had not done so, claiming that her doctor put her on bed rest before her baby was delivered.   Mother never scheduled her psychological evaluation despite repeated calls from Dr. Goodwin-Matthews.

Mother visited the children only twice, notwithstanding the social worker's many efforts to arrange visitation, provide bus passes, issue funds for transportation to Bakersfield, and monitor visits.   Mother often did not return the social worker's calls to arrange visits.   To facilitate visitation, the Department even offered to schedule visits in Los Angeles, to no avail.   Mother's first visit occurred after the court date in May. She had her second visit on November 17, 2008.   Mother blamed father for her lack of contact with the girls.

Not only did mother not visit, but she had no contact with the children between May and September, when she telephoned them.   To assist mother, the Department arranged for father to act as monitor and still mother only called “periodic[ally].”   Finally, father arranged for mother to make calls in the evening and he agreed to wait until mother called.   Nonetheless, mother complained to the Department that father was “jeopardizing her visits and telephone calls” because “he was not a professional monitor.”   After hearing a different story about the telephone calls from father, the social worker concluded that “mother has failed her visit[ation.   S]he always finds unreasonable excuses to not visit with the girls and [to] blame the father” for her failure to cooperate with her case plan.   Also, the Department concluded that mother was not always appropriate during the calls.   For example, she made inappropriate remarks to Destiny about not celebrating Christmas with father because of his religion.   Father's attempts to redirect mother's comments were unsuccessful and so he terminated the call.   When the social worker attempted to discuss the issue with mother, she became agitated and angry, and hung up the phone.

Meanwhile, although they sounded sad because they missed their mother, the children were thriving in father's care where he and the stepmother had provided a loving home and were meeting all of the children's physical, psychological, and educational needs.   Father was “extremely interested in learning a new way of dealing with the girls” and they in turn had become more responsive to him.   The children's therapist stated that she “ ‘enjoyed working with this family,’ and ․ appreciates ‘the opportunity to have worked with such a responsive and loving father whose goal has been and remains to do what is best for his girls.’ “

Mother appeared at the six-month review hearing (§ 366.21, subd. (e)) on December 17, 2008.   The juvenile court did not terminate reunification services despite the Department's recommendation, but extended services an additional six months because mother had had 11 weeks of bed rest, had completed a parents beyond conflict and parenting program, and the children were older than three years of age.   The court expressed concern about mother's lack of visits, and that she had only recently enrolled in a counseling program.   The court admonished mother to cease blaming father, who, the court also noted, was doing everything the court asked of him.   The court also admonished mother to “step up to the plate and change your attitude,” and warned mother that she needed to forge a positive relationship with her children.   The court continued the 12-month judicial review hearing to February 11, 2009, and specifically ordered mother to return on that date.

b. The 12-month review period (§ 366.21, subd. (f))

Mother's participation in her case plan did not improve.   In February 2009, Pride Health Services informed the social worker that it would submit a letter confirming mother's enrollment in its program, but could not honor mother's request to falsify information and so it could not describe any progress mother had made because her participation has been “very limited.”   Mother never scheduled an Evidence Code section 730 evaluation or commenced conjoint therapy with the girls as ordered by the court.   She only visited the children once in six months, on January 10, 2009, and although she arranged to telephone the girls instead, she never called.   Consequently, the Department recommended termination of reunification services and termination of jurisdiction with a family law order granting father sole legal and physical custody.

3. Notice

The Department sent mother a notice of the 12-month review hearing (§ 366.21, subd. (f)) to be held on February 11, 2009 and notified her that the Department recommended termination of jurisdiction.   Despite the notice, mother did not appear at the scheduled hearing.   Mother's attorney requested the matter be continued for a contest, and that the Department notify mother of the continuance.   There is no evidence in the record that mother was served with notice of the continuance.

Mother did not appear at the continued 12-month review hearing held on March 6, 2009.   The juvenile court found mother had been properly notified but did not appear.   Mother's attorney acknowledged that mother failed to comply with all of the court's orders, and asked that the family law order be for joint legal custody and visits not be monitored, “but arranged between the parents.”  (Italics added.)   The court found that mother minimally complied with the case plan because she did not avail herself of visitation and opportunities to reunify.   Therefore, the court found that return of the children to mother created a substantial risk of detriment to them.   The court terminated reunification services and jurisdiction.   The exit orders included a family law order granting sole legal and physical custody of the children to father and allowing mother monitored visits with a monitor approved by the father only so long as the visits were appropriate, or else visits would move to a therapeutic setting with a therapist funded by mother.   Mother filed her notice of appeal.

CONTENTIONS

Mother contends that (1) the court abused its discretion in refusing to grant her joint legal custody;  (2) she did not receive notice of the continued 12-month review hearing;  and (3) remand is necessary to establish a proper visitation schedule.

DISCUSSION

1. The juvenile court did not abuse its discretion in fashioning exit orders granting father sole legal custody.

Mother contends that failure to grant her joint legal custody of the children was an abuse of juvenile court discretion.

When the juvenile court removes a child pursuant to section 361, it may place the child with a noncustodial, nonoffending parent who desires to assume custody. (§ 361.2, subd. (a).)  The court then decides whether there is a need for ongoing supervision.  (In re Austin P. (2004) 118 Cal.App.4th 1124, 1135.)  “If there is a need for ongoing supervision, the court is to continue its jurisdiction.”  (Ibid.) “If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody.”   (Ibid., italics added, citing § 361.2, subd. (b)(2).)

Here, substantial evidence supports the juvenile court's finding that there was no need for ongoing supervision.  (In re Austin P., supra, 118 Cal.App.4th at p. 1135.)   The Department's reports all reflect the excellent care father and stepmother were taking of the children.   The girls are in a safe, well-adjusted home where all of their needs are being met.   Father immediately complied with all of his case-plan requirements to such a degree that he became the monitor for mother's telephone conversations.   Not only were the girls happy living with their father, they had shown a marked improvement in their relationship with father, who their therapist described as a “responsive and loving [man] whose goal [is] to do what is best for his girls.”   Because the children are not at risk with father, they no longer require the protection of the juvenile court.   Therefore, the record supports the court's conclusion that there existed no need for ongoing supervision.

When the juvenile court terminates jurisdiction in a dependency case, it may issue an exit order for custody and visitation. (§ 362.4;  In re Chantal S. (1996) 13 Cal.4th 196, 202-203;  see also In re John W. (1996) 41 Cal.App.4th 961, 970, fn. 13 [explaining the term “exit order”].)   As with the decision to terminate jurisdiction, we “review the juvenile court's decision to terminate dependency jurisdiction and to issue a custody (or ‘exit’) order pursuant to section 362.4 for abuse of discretion [citation] and may not disturb the order unless the court ‘ “ ‘exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’  “ ‘ [Citations.]”  (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.)

Mother observes, citing the Family Code, that while there is no presumption in favor of joint legal custody in family law, joint custody “is the norm.”   She argues that the effect of the dependency proceedings “was to return the matter back to the original status quo” from the dissolution of the parents' marriage, under which father had full physical custody, but shared joint legal custody.   However, a similar argument-that because family law would apply in the future, it must govern the juvenile court's custody orders-was rejected in In re Jennifer R. (1993) 14 Cal.App.4th 704, 711.   The Jennifer R. court explained that dependency law vests the juvenile court with authority to make custody decisions.  (Id. at p. 711, citing § 304.)   Yet, as Jennifer R. noted, basic differences exist between juvenile dependency and family law in custody matters that go to the applicable standards the courts employ.  (In re Jennifer R., supra, at p. 712;  accord, In re John W., supra, 41 Cal.App.4th at p. 971.)   In dependency, the court determines the best interests of the child;  in family law, it determines “the best interests of the child as between two parents.”  (In re John W., supra, at p. 971, italics added, citing In re Jennifer R., supra, at p. 712 & In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.)   More important, the family law courts operate with the presumption that both parents are fit whereas the juvenile court does not.   (In re Jennifer R., supra, at p. 712.)   Children are in the juvenile court exactly because of the abuse or neglect by at least one parent.  “The juvenile court makes its custody determination ‘without any preferences or presumptions.’  [Citation.]”  (In re John W., supra, at p. 972.)  “The court is not required to apply a per se rule that the child's time must be split in half as long as neither parent poses an active threat.”  (Id. at p. 965.)

Here, the order granting father full legal and physical custody was not an abuse of discretion.  “In making ‘exit’ orders ․ it is the best interests of the child, in the context of the peculiar facts of the case before the court, which are paramount.”  (In re John W., supra, 41 Cal.App.4th at p. 965.)   The question at the 12-month review hearing was what permanent plan to fashion for the children and whether they could be returned to mother. (§ 366.21, subd. (f).)  The court must order the children returned to mother unless it finds that return would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being.  (Ibid.) “The failure of the parent ․ to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.21, subd. (f).)  The record shows that mother scarcely complied with her case plan and made no progress in learning how to relate to her children.   Mother's participation in the program at Pride Health Services was only recent and “very limited.”   She never scheduled an Evidence Code section 730 evaluation and never commenced conjoint therapy with the girls as ordered by the court.   More important, mother only visited her children three times in nine months and missed most of her telephone calls with them.   What contact she had with the girls was not always appropriate.   Clearly, mother had made virtually no progress toward forging “a positive relationship with her children.”   Therefore, in the context of this case, the children's best interests are served by an order granting father sole legal and physical custody and so the order was not an abuse of discretion.

We observe that mother has not been prejudiced by, nor have her fundamental rights been affected by, the juvenile court's order terminating jurisdiction.   Custody orders are modifiable.   Section 362.4 provides that “Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court.”

2. The lack of notice was not prejudicial.

Mother contends that she was not given notice of the hearing on March 6, 2009 when the juvenile court terminated its jurisdiction over the children.   She argues she was prejudiced because she clearly wanted to challenge the dismissal of the petition and termination of reunification services.

The Department counters that mother waived this contention as her attorney, who did appear, failed to object.   It is true that mother's attorney appeared at the March 6, 2009 hearing and did not ask for a continuance because of mother's absences;  her attorney did not object to the court proceeding in her absence.   Instead, he argued the case on mother's behalf.  “ ‘In dependency cases, as in other civil cases, personal appearance by a party is not essential;  appearance by an attorney is sufficient and equally effective.’   [Citations.]”  (In re Jesusa V. (2004) 32 Cal.4th 588, 602.)  “As a general rule, a party is precluded from urging on appeal any point not raised in the trial court.  [Citation.]”  (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.)

However, a major exception occurs “when the error involves the fundamental jurisdiction of the court to act.  [Citation.]”  (In re Riva M., supra, 235 Cal.App.3d at p. 412.)   Notice of a hearing, especially where the juvenile court was considering terminating its jurisdiction is required. (§§ 302, subd. (b), 366.21, subd. (b);  In re Michael W. (1997) 54 Cal.App.4th 190, 194.)   Mother was entitled to notice of the 12-month review hearing. (§ 302, subd. (b) [“Unless their parental rights have been terminated, both parents shall be notified of all proceedings involving the child.”];  Cal. Rules of Court, rule 5.534(l ).)

Nonetheless, “[u]nless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se ( [In re ] Jasmine G. [ (2005) ] 127 Cal.App.4th [1109,] 1116;  [In re ] DeJohn B. [ (2000) ] 84 Cal.App.4th [100,] 109-110), errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice.  [Citations.]”  (In re J.H. (2007) 158 Cal.App.4th 174, 183;  accord In re Angela C. (2002) 99 Cal.App.4th 389, 394-395 [failure to give notice of continued section 366.26 hearing subject to Chapman harmless-error analysis].) ³ ,⁴

Here, mother had notice of the dependency proceedings from the beginning and had the opportunity to be heard and indeed participated.   She was represented by counsel.   Thus, mother is not challenging the lack of personal jurisdiction in the first instance.   More important, as mother acknowledges, she received proper notice of the originally scheduled 12-month review hearing date set for February 11, 2009 and was notified of its implications and of the Department's recommendation to terminate juvenile court jurisdiction.   Had the court proceeded at the originally scheduled hearing in February 2009, as it had every right to do given its proper notice to mother, that hearing would have been uncontested because mother did not appear as originally noticed.   As prejudice, mother argues only that because “it is clear from this record that [mother] always wanted to challenge the dismissal of the petition and the termination of reunification services, the only conclusion that can be made is that she was clearly prejudiced by the lack of notice.”   Yet, mother was only entitled to 12 months of services. (§ 361.5, subd. (a)(1)(A).)   Given mother's near complete failure to participate and make progress in her court-ordered programs, and our conclusion, infra, that the juvenile court did not err in terminating jurisdiction and granting father sole legal custody, mother stood no chance of prevailing on the argument that reunification services should have been extended.   Stated otherwise, mother was not prejudiced because the same result would have obtained had mother been properly notified and appeared at the hearing.

3. Visitation order

Finally, mother contends that the juvenile court's visitation order was an impermissible delegation of authority because it did not contain a visitation schedule and effectively gives father “absolute discretion” to control the frequency and duration of visitation.   Yet, it was mother who requested, through her attorney, that visits be “arranged between the parents.”   Having requested that arrangement, mother cannot be heard to complain that it was error.  (In re Jamie R. (2001) 90 Cal.App.4th 766, 771-772.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code..  FN1. All further statutory references are to the Welfare and Institutions Code.

FN2. Father is not a party to this appeal..  FN2. Father is not a party to this appeal.

FN3. Chapman v. California (1967) 386 U.S. 18..  FN3. Chapman v. California (1967) 386 U.S. 18.

FN4. Mother's reliance on In re Jasmine G. and In re DeJohn B. is therefore unavailing.   In both cases, the Department made no effort whatsoever to notify the parent.  (In re Jasmine G., supra, 127 Cal.App.4th at p. 1118;  In re DeJohn B., supra, 84 Cal.App.4th at p. 109.)   Here, by comparison, as mother acknowledges, she received notice of the original 12-month review hearing set for February 11, 2009, and indeed was present and does not contest notice of any of the previous hearings.   Rather, mother had full “notice of these dependency proceedings from the outset, as well as the opportunity to be heard.   Additionally, [she] received proper notice of the originally scheduled [section 366.21, subdivision (f) ] hearing date[ ]” and its implications.  (In re Angela C., supra, 99 Cal.App.4th at p. 395.).  FN4. Mother's reliance on In re Jasmine G. and In re DeJohn B. is therefore unavailing.   In both cases, the Department made no effort whatsoever to notify the parent.  (In re Jasmine G., supra, 127 Cal.App.4th at p. 1118;  In re DeJohn B., supra, 84 Cal.App.4th at p. 109.)   Here, by comparison, as mother acknowledges, she received notice of the original 12-month review hearing set for February 11, 2009, and indeed was present and does not contest notice of any of the previous hearings.   Rather, mother had full “notice of these dependency proceedings from the outset, as well as the opportunity to be heard.   Additionally, [she] received proper notice of the originally scheduled [section 366.21, subdivision (f) ] hearing date[ ]” and its implications.  (In re Angela C., supra, 99 Cal.App.4th at p. 395.)

KLEIN, P. J. KITCHING, J.