IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 11, 2011
IN RE J. Q., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
A. Q., DEFENDANT AND APPELLANT.
(Super. Ct. No. JD228454)
The opinion of the court was delivered by: Robie , Acting P. J.
In re J.Q.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 two separate cases, A. Q. (father), who is serving a state prison term of life without possibility of parole, first appeals from an in-home review hearing order that allowed him visitation with minor J. Q. only through telephone and letter contact monitored by a third party (case No. C066282) and then from a subsequent exit order that maintained these limits on visitation (case No. C066557). On our own motion, we consolidated the appeals. We now affirm in the first appeal and dismiss the second appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
On October 2, 2008, Sacramento County Department of Health and Human Services (the department) filed petitions under Welfare and Institutions Code*fn1 section 300 as to minors J. F. (a 10-year-old male), J. Q. (a 6-year-old male), M. M. (a 4-year-old female), and W. M. (M. M.'s fraternal twin brother). The petitions alleged that the mother (M. F.) had requested that the minors be removed from her custody because she was overwhelmed caring for them, could not obtain suitable housing, and suffered from mental health problems.
According to the detention report, J. Q. suffered from attention deficit hyperactivity disorder and was in special education. The minors had three different alleged fathers.*fn2
On October 6, 2008, the juvenile court was informed that all the alleged fathers were incarcerated; appellant/father was housed at California State Prison, Corcoran. The court ordered the minors detained.
The department's jurisdiction/disposition report stated that J. Q. said he wanted to live with mother. Mother admitted regular methamphetamine use until three years ago; she also had an alcohol problem she did not admit to. She was referred for supportive services and outpatient substance abuse treatment in a dual diagnosis group.
Father's criminal record through 2003 included felony convictions for vehicle theft, assault with a firearm on a person, making terrorist threats, attempting to prevent or dissuade a witness from testifying, and stalking; after the last three convictions, he was sentenced to a state prison term of 78 years to life. Further felonies in custody, including attempted murder of a prison official, increased his sentence to 181 years to life.
An addendum report recommended that the juvenile court deny reunification services and make a no-contact order as to father because: (1) he was serving an life-without-possibility-of-parole sentence; and (2) J. Q. had not seen him in four years and had no significant attachment to him.
A second addendum report recommended that the juvenile court return J. Q. to mother under dependent supervision and order visitation for father by telephone and letter contact through the social worker. Any other visitation should be left to the department's discretion, considering J. Q.'s wishes.
Following a contested dispositional hearing which ended on April 16, 2009, the juvenile court made the recommended orders. According to the minute order, the court ordered as to father's visitation: "The father shall have phone and letter contact as arranged by the social worker. Visits with the father may be arranged by the social worker. The child's wishes shall be taken into consideration; the child shall not be made to visit against his will."
As of August 6, 2009, when the department filed a prepermanency review/in-home review report, all four minors were living with mother. The report recommended termination of dependency. It stated as to J. Q.: "The child has no visits with the father, as the father is incarcerated for a long time and visitation would be detrimental to the child."
The report recounted the following events related to father's visitation:
In April 2009, mother said she did not think in-person visitation would be helpful for J. Q., and J. Q., when asked about it, "made a sign of negation with his head and walked away."
In May 2009, the social worker received a letter sent by father for J. Q. which included a picture of father, mother, and J. Q. together. The letter seemed to promise J. Q. that he and father could be together by Christmas. Disturbed by this message, the social worker did not pass the letter on to mother.
In July 2009, the social worker discussed the letter with mother. Mother thought it meant that father was saying he could not have contact with J. Q. now because he was in a secured housing unit, but could do so at the end of the year, after he was released from isolation. The social worker then passed the letter on to mother.
Mother said she did not oppose father having phone contact with J. Q., but she did not want father to have her phone number; she suggested the maternal grandmother as an intermediary. Mother also did not oppose in-person visitation at the prison, but did not want to take J. Q. there; she suggested that the paternal grandmother could do so.
The paternal grandmother said that she and her family visited father at the county jail when he was transported for hearings in the case. The last time they went to see father at the jail, J. Q. did not want to go, but more recently he had said he would like to. He was going through a rough time emotionally.
Father wrote to the social worker requesting an order for in-person visitation.
On August 13, 2009, the juvenile court terminated jurisdiction over the minors and issued a temporary judgment which ordered "supervised visitation" for father "to be determined by the mother."
The court's final judgment, issued on August 17, 2009, further specified: "[C]hild is not required to participate in visitations with father at penal institution. Visits may or may not include phone and/or letter contact." The reasons for the restriction on visitation were "an ongoing incarceration, extensive history of violent behavior."
On September 14, 2009, the department filed a new section 300 petition as to all the minors, alleging that mother's current live-in boyfriend had committed a stabbing and mother had abetted his getaway.*fn3
At the detention hearing on September 18, 2009, the juvenile court ordered the minors returned to mother's custody under dependent supervision.
The jurisdiction/disposition report stated that J. Q. was moody and hard to manage at home; he had been diagnosed with Asperger's syndrome and was receiving counseling and psychotropic medication. He did not have visitation with father because "father is serving a life sentence and has no bond with the child, therefore visitation would be detrimental to the child." The department recommended visitation (in terms consistent with all prior orders) only by "[l]etter contact . . . to be determined by the Department."
Oddly, however, the proposed visitation order attached to the report stated: "The father . . . shall have letter contact with [J. Q.], consistent with the child's well being. The Department . . . shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, and whether the visits are supervised and who supervises them. The Department's discretion shall extend to determining if and when to begin unsupervised overnight and weekend visits. The parent shall not be under the influence of alcohol or controlled substances during visits and if found to be so, that visit shall be terminated. The Department may consider the child's desires in its administration of the visits, but the child shall not be given the option to consent to, or refuse, future visits."*fn4 (Italics added.)
At the jurisdiction/disposition hearing, held on October 22 and October 29, 2009, county counsel called the proposed visitation order "confusing" and requested that the juvenile court instead "just [make an order] that the father may have contact, I guess, at this point to go through the Department." Father's counsel said: "I believe that the issue is that the father would still be allowed letter contact with his child." (Italics added.) The court replied: "Through the social worker, yes." The court then orally ordered: "The Court at this time does adopt the . . . orders proposed on . . . page 35, lines 2 through 4. [Father] shall have letter contact with [J. Q.]. The letter contact shall be arranged through the Department."*fn5
Despite this colloquy, the clerk's transcript shows the proposed visitation order adopted in full, with no deletions.
The in-home review report filed on April 8, 2010 asserted: "[F]ather [is] currently incarcerated in state prison and no visitation was granted by the Court." (Italics added.) It did not include any proposed visitation order as to father.
At the in-home review hearing held on April 8, 2010, counsel for another father pointed out the lack of proposed visitation orders for the fathers and requested that the previous orders remain in effect. The juvenile court, apparently unaware that all the fathers were incarcerated, asked what the previous orders were.*fn6 Father's counsel informed the court that the fathers had been denied visits. He then purported to quote the previous order as to appellant/father: "It says letter contact with [J. Q.] consistent with child's well-being. And then the Department shall determine time, place and manner of visitation and frequency, blah, blah, blah." (In other words, counsel quoted the written minute order as it appears in the clerk's transcript, not Referee Hertoghe's oral order, which expressly did not adopt anything from the proposed order beyond the first sentence quoted by counsel.)
County counsel later informed the court: "[M]y latest notes indicate that . . . father's visitation is by letter contact only." Father's counsel "explained" the order as follows: "I think the reason Referee Hertoghe made the order the way it was is because [father] was incarcerated in the [secured housing unit], which was glass only through a telephone, and that she wanted to be able to give the freedom if he's released from the unit to have face-to-face contact if that's appropriate at the time when that occurs. So for while he was locked up in the security housing unit letter only, because she didn't want to have to have the kid visit through the glass. But if he's released where he can have face-to-face contact, then that would allow it."*fn7
The juvenile court replied: "That makes sense." Then, however, the court stated: "So what I'm going to do, frankly, is just indicate that all prior visitation orders remain in effect as previous because of those special considerations." The minute order of the hearing states: "All previously made visitation orders for [father] shall remain in full force and effect."
At an in-home review hearing on September 23, 2010, at which the department sought a continuance because it had not yet prepared a report, father's counsel stated that father had requested an assessment for visitation and permission to send letters directly to J. Q. The juvenile court denied the latter request, stating: "[T]here are setforth [sic] in the case file very good reasons why any communication between [father] and the child should go through the social worker." As to the former request, the court stated: "I don't think they need to re-assess. I think they just need to indicate whether they believe it is still detrimental for the child to visit and basically indicate whether there is or isn't a change. If there is no change -- certainly the Court's not ordering a re-assessment if there has not been a change. If there is a change, then [father's counsel] needs to let the Court and the Department know so they can make a new assessment." The court continued the matter to October 21, 2010, directing the department in its upcoming report to address the issues of "[c]orrespondence to the children and whether visitation is detrimental to the children."
The status review report filed on October 8, 2010 recommended terminating the dependency. It stated that J. Q. had now been diagnosed with autism and attention deficit hyperactivity disorder. It repeated the statement from the April 2010 report that "no visitation was granted [to father] by the court." It also stated: "[F]ather is serving a life sentence at Corcoran State [P]rison and has no bond with the child; therefore visitation would be detrimental to the child. Any written contact between father and child shall be sent to the Department to be forwarded to the child as long as it is deemed appropriate." The proposed visitation orders specified supervised visitation for one of the other fathers, but not for J. Q.'s appellant/father; under "reasons for supervised or no visitation," it stated only that the juvenile court had denied reunification services to him because of long-term incarceration.
At the hearing on October 21, 2010, county counsel recommended that the juvenile court order letter contact with J. Q. for father through the maternal grandmother, as mother had requested. Father's counsel objected to this proposed order, but offered no argument against it.
The juvenile court orally ordered the termination of dependency, with visitation for father by letter and telephone contact through the maternal grandmother. The court's written judgment called this order "supervised visitation" and specified that contact would be "through [maternal grandmother] only."
Case No. C066282
In this case, father appeals from the juvenile court's order of September 23, 2010, which maintained in effect the previous orders limiting visitation to letter and telephone contact through the department. Claiming that this order is inconsistent with the prior order of August 13, 2009 -- which, according to father, authorized supervised in-person visitation once he was released from the secured housing unit -- father requests that we remand the matter to the juvenile court with directions to resolve the inconsistency. We shall dismiss the appeal as moot.
Since the September 23, 2010, order has been superseded by the final judgment, even if we agreed with father's argument there is no effectual relief we could grant, and the appeal does not raise any issue of continuing public interest likely to recur. The appeal is therefore moot. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.) So far as father's contention is relevant to the appeal in case No. C066557, we address it there.
Case No. C066557
In this case, father contends that the juvenile court abused its discretion by barring in-person visitation in its final judgment. Father reasons: (1) in making its visitation order, the court relied on the department's statement in its final report that no visitation had previously been granted to him; (2) this statement was incorrect because the order of August 13, 2009, granted him supervised visitation; (3) therefore, this court must reverse. This contention is frivolous.
As father acknowledges, we review visitation orders under the abuse of discretion standard. (See In re Julie M. (1999) 69 Cal.App.4th 41, 48-51.) This means that we reverse only if the ruling exceeded the scope of the court's discretion or, if under all the evidence (including reasonable inferences from the evidence) viewed most favorably to the ruling, no reasonable judge could have so ruled. (Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1459; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Father appears to assert that the visitation order exceeded the scope of the juvenile court's discretion because the order was founded on a mistaken premise (cf. Great West Contractors, at p. 1459), but he fails to show any such mistaken premise.
To begin with, because father did not call the juvenile court's attention to the alleged inaccuracy of the department's statement, and a purely factual contention of this sort does not present an important legal issue that might justify its consideration for the first time on appeal, the contention is forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Dakota S. (2000) 85 Cal.App.4th 494, 502.)
But even if not forfeited, the contention is baseless. As of April 8, 2010, when Referee Chrisman took over the case, she knew that father had been granted visitation in the form of letter and telephone contacts supervised by the department. County counsel and father's counsel agreed to that fact (amply documented in the record) in open court. Thus, when Referee Chrisman ordered the continuation of the existing orders, that necessarily meant a continuation of the order for visitation by letter and telephone contact only. Any later statement in the department's reports that "visitation" had not been granted father could not have misled Referee Chrisman on this point.*fn8 Therefore, the alleged "mistaken premise" on which, according to father, Referee Chrisman based her order did not exist.
Father cites no authority holding that "visitation" cannot mean letter or telephone contact supervised by the department or some other third party, and we know of no such authority. In fact, throughout this case, when the juvenile court ordered "supervised visitation" it usually specified that this meant letter or telephone contact only, and it never stated that "supervised visitation" had to include in-person visitation. It does not matter whether the department's reports ever used the term that way, because the court's orders speak for themselves.
The order of August 13, 2009, on which father relies, does not assist him. In that order, which formed part of the temporary judgment terminating the first dependency proceeding, the juvenile court stated only that "[s]upervised visitation" was "to be determined by the mother." That order was then superseded by the visitation order in the final judgment, issued on August 17, 2009, which specified that J. Q. was "not required to participate in visitations with father at penal institution" and that "[v]isits may or may not include phone and/or letter contact."
Finally, father utterly fails to explain why no reasonable juvenile court judge could have made the order he attacks. (Cf. In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) The evidence showed that J. Q. had not seen father for years, had no relationship with him, and was emotionally fragile. Under these circumstances, to order in-person visitation with father in a maximum security prison would have been an abuse of discretion.
In case No. C066557, the visitation order is affirmed. In case No. C066282, the appeal is dismissed.
We concur: BUTZ , J. DUARTE , J.