Filed 7/9/14 In re Joseph M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 JOSEPH M. et al., Persons Coming B252127
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK98575)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOSEPH M., SR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Emma
Castro, Commissioner. Affirmed.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
______________________________________
Minors Joseph (age 6), Andrew (age 5), Madilynn (age 3), and Autumn (age 21
months) were adjudged dependents of the juvenile court pursuant to Welfare and
Institutions Code section 300, subdivision (b) (failure to protect).1 Joseph M., Sr.
(Father), appeals from the court’s September 24, 2013 order denying him a contested
hearing on the issue of visitation. M.M. (Mother) is not a party to this appeal.
We conclude the juvenile court did not deny Father due process by refusing him a
contested hearing on the issue of visitation, as he had an adequate procedure available to
him for protecting his interests, which the court brought to his attention. We affirm.
BACKGROUND
The Department of Children and Family Services (DCFS) sought jurisdiction over
the minors due to reports of domestic violence perpetrated by Father on Mother. At a
jurisdictional hearing on March 26, 2013, Father submitted a signed waiver of his rights.
Father pleaded no contest to an amended section 300 petition. After mediation, Father
and Mother agreed the minors would be placed in the care of Mother, “family
maintenance services” to be provided to Mother, and “family reunification services” to be
provided to Father.
The juvenile court sustained the amended petition, declared the minors dependents
of the court, placed the minors in the care of Mother, ordered DCFS to provide “Family
Maintenance Services” to the “parents,” ordered Father to attend a DCFS-approved 52-
week domestic violence program, plus parenting classes, and ordered Father to have
monitored visitation. Notwithstanding the plan agreed to by the parties after mediation,
the court did not order that family reunification services be provided to Father.
By June 25, 2013, Father had reported to DCFS that he had almost completed his
52-week domestic violence program and had provided DCFS with a certificate indicating
he had completed a parenting class. On that date the juvenile court held a progress
hearing. It ordered DCFS to meet and confer with Father to work out a visitation
1 Undesignated statutory references are to the Welfare and Institutions Code.
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schedule. The court ordered DCFS to provide the “parents” with “Family Maintenance
Services.” It did not order “family reunification” services.
On September 24, 2013, DCFS reported that the previously assigned caseworker
had been unable to arrange visits with Father, that a new caseworker recently had been
assigned, that she had attempted to contact Father without success, and that DCFS had
not had contact with him since the hearing on June 25, 2013. No visitation schedule had
been set up for Father and Father had not seen the minors since they were detained.
DCFS recommended continued supervision.
On September 24, 2013, the juvenile court held a hearing pursuant to section 364.2
DCFS informed the court that transportation assistance had not been provided to Father
because the previous caseworker was out on medical leave and the current caseworker
just had been assigned on August 28, 2013. The court ordered DCFS to provide the
transportation assistance that the court had ordered previously. Father stated he was
concerned about his services, had tried to contact the caseworker several times, and
wanted to cross-examine the caseworker. He requested a contested hearing on the issue
of visitation and possibly on DCFS’s failure to provide him with services. He argued that
he had progressed far enough to receive unmonitored visitation.
The juvenile court denied Father’s request for a contested hearing, but suggested
Father file a section 388 petition.3 The court stated that Father’s section 388 petition
would be “liberally construed and possibly set for hearing.”
The juvenile court stated that because the minors had been released to Mother at
the jurisdictional and dispositional hearing and Father had been offered “enhancement
services” and not “family reunification services,” he had “no right to contest this 364
2 A section 364 hearing is a hearing in which the juvenile court determines
whether continued supervision of the minors is necessary and where the court reviews
DCFS’s report describing the services offered to the family and the progress made by the
family in eliminating the conditions or factors requiring court supervision.
3 A section 388 petition permits the court to modify visitation and other orders on
proof of change of circumstances, such as completion of court-ordered domestic violence
and parenting programs.
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hearing.” The court observed that Father had not previously been granted a minimum
number of visits and ordered him to have a minimum of two visits per week for up to two
hours per visit. The court ordered DCFS to meet and confer with Father to ensure
compliance with visitation orders and encouraged Father to contact the caseworker to
work out visitation. The court determined that continued jurisdiction was necessary
“because conditions continue to exist which justify the Court taking initial jurisdiction
pursuant to [section] 300.”
Father appealed.
DISCUSSION
Father contends he was denied his right to due process when the juvenile court
denied him a contested hearing, allowing him to present evidence and cross-examine
witnesses. We disagree.
As the United States Supreme Court has recognized, the concept of due process
cannot be defined with precision. (Lassiter v. Department of Social Services (1981) 452
U.S. 18, 24 [101 S.Ct. 2153].) It is clear, however, that a parent is entitled to due process
in dependency proceedings. “‘Since the interest of a parent in the companionship, care,
custody, and management of his children is a compelling one, ranked among the most
basic of civil rights [citations], the state, before depriving a parent of this interest, must
afford him adequate notice and an opportunity to be heard. [Citations.]’” (In re Kelvin
M. (1978) 77 Cal.App.3d 396, 402; In re Jennifer O. (2010) 184 Cal.App.4th 539, 545.)
Statutory procedures that are “carefully calculated to constrain judicial discretion,
diminish the risk of erroneous findings . . . and otherwise protect the legitimate interests
of the parents” protect a parent’s due process rights. (Cynthia D. v. Superior Court
(1993) 5 Cal.4th 242, 256.) One of the procedures available in California dependency
matters that is designed to protect a parent’s due process rights is a petition filed under
section 388. “A parent’s ability to file a section 388 petition provides an ‘escape
mechanism’ that lessens the risk of an erroneous deprivation of the parent-child
relationship in the event of a legitimate change in circumstances. [Citation.]” (In re
Dakota M. (2005) 132 Cal.App.4th 212, 224.)
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Father was in a position to avail himself of a section 388 petition. The juvenile
court suggested he file such a petition and stated such a petition would be “liberally
construed and possibly set for hearing.” Father’s claim that he was deprived of due
process was, at best, premature, as he was given the opportunity to utilize the juvenile
court’s “process” by means of a court procedure designed to address just the type of
change of circumstances that Father had achieved: That is his completion of a parenting
class and, presumably, completion of a domestic violence program as well. Filing a
petition under section 388 might well have resulted in unmonitored visitation and
improvement in services provided to Father, or, at least, the contested hearing Father
wanted.
Moreover, in establishing a visitation schedule and ordering DCFS to meet and
confer with Father to ensure compliance with its visitation orders, and in admonishing
DCFS to provide Father with the transportation services it had ordered earlier, the
juvenile court did everything in its power to assist Father short of initiating contempt
proceedings against DCFS on its own motion.
Under these circumstances, Father has failed to establish that a section 388
petition was inadequate to protect his rights or that he was deprived of due process.
In light of the foregoing, we need not consider the parties’ arguments concerning
any distinction between a parent’s due process rights when family maintenance or
enhancement services are ordered, as opposed to family reunification services.
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DISPOSITION
The juvenile court’s September 24, 2013 order denying Joseph M., Sr., a contested
hearing is affirmed.
NOT TO BE PUBLISHED.
MILLER, J.*
We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.
* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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