Filed 9/21/16 In re June P. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re JUNE P., a Person Coming Under
the Juvenile Court Law.
LOS ANGELES COUNTY B268704
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. DK06363)
Plaintiff and Respondent,
v.
MICHAEL P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Philip
L. Soto, Judge. Reversed and remanded with directions.
Jennifer L. King, under appointment by the Court of Appeal, for Defendant
and Appellant.
Mary Wickham, County Counsel, and Kim Nemoy, Deputy County
Counsel, for Plaintiff and Respondent.
Appellant Michael P. (Father), father of June P., appeals the juvenile court’s
order denying him unmonitored visitation. The court was prepared to grant Father
such visitation, but insisted that it could not do so until Father secured from the
criminal court an order modifying a previously issued restraining order. Father
contends that rule 8.34 of the Los Angeles Superior Court Local Rules (Local Rule
8.34) requires a juvenile judicial officer who has been persuaded that unmonitored
visitation would be in a child’s best interest to initiate contact with any judicial
officer who issued a criminal restraining order to obtain modification of the
restraining order, and that the juvenile court erred in failing to follow the rule.1 We
agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
June was born in March 2013. Shortly after her birth, Mother obtained a
temporary restraining order prohibiting Father from contacting her, June or the
maternal grandmother with whom they lived. Later that month, Father was
arrested and remained incarcerated for several months. After his arrest, the court
issued a permanent restraining order, expiring in June 2023.
Mother, who tested positive for marijuana after Father’s arrest, agreed to
participate in voluntary family maintenance services offered by the Department of
Children and Family Services (DCFS). However, she failed to participate and
failed to keep in contact with DCFS. In July 2014, DCFS filed a petition under
1
Respondent submitted a letter stating it took no position in the appeal.
2
Welfare and Institutions Code section 300.2 June was detained in September
2014.3
In November 2014, the court found jurisdiction appropriate under section
300, subdivisions (a) and (b) due to domestic violence and substance abuse. Prior
to the May 2015 six-month review hearing, DCFS informed the court that Father
was enrolled in a domestic violence class and a three-month outpatient drug
program, had completed parenting education, was attending Alcoholics
Anonymous meetings, and was gainfully employed. He was drug testing, but his
tests were often positive for cannabinoids. At the review hearing, the court found
that there was a substantial probability that June would be returned to the custody
of her parents within the time frame required by section 366.21, subdivision (g),
and granted both parents further reunification services. It granted Father, who had
been prohibited from contacting June by the criminal restraining order, monitored
telephone communication with June.
In August 2015, Father petitioned for modification under section 388,
seeking in-person visits based on having obtained a modification of the restraining
order.4 The court instructed DCFS to examine the criminal court file by August 14
to ensure the modification order had been filed, and to arrange monitored visitation
three times per week for three hours “if appropriate.” Visitation began August 22.
2
Undesignated statutory references are to the Welfare and Institutions Code.
3
Between July and September, Mother’s and June’s whereabouts were unknown.
June was initially placed with her paternal grandmother, who fell ill and died. After a
brief period with another paternal family member, she was placed in foster care with the
B.’s, where she currently resides.
4
As modified, the restraining order stated: “The defendant also has a dependency
case pending, this court has no objection to allow defendant to have monitored visits as
prescribed by dependency court. [¶] The court orders defendant to follow[] any order
given in the dependency court case as far as monitored visits are concerned.”
3
The six visits that followed went well, and Father did not miss any scheduled
visits.
In September 2015, Father petitioned again under section 388, seeking
unmonitored visitation. He presented evidence of having completed the parenting,
domestic violence and drug treatment components of his case plan. The court
denied the petition “[without] prejudice,” instructing DCFS to meet and confer
with Father to arrange unmonitored visitation.
By October 2015, DCFS had not liberalized visitation, and Father submitted
another request to the court for unmonitored visits. At the November 2, 2015
hearing on the request, counsel for DCFS explained that the agency did not object
to Father’s having unmonitored visits with June, but felt hamstrung by the
restraining order because even as modified, it required visitation to be monitored.5
The court stated that all it could do was to give DCFS “discretion to allow for
overnight visits” if Father “ha[s] the criminal court [order] modified.”
Counsel for Father brought to the court’s attention Local Rule 8.34(d)(1),
which provides: “If a criminal court protective order exists and a judicial officer in
another court has a case in which he or she determines that it is appropriate to
permit visitation different than that provided for in the criminal protective order,
the judicial assistant for that judicial officer must contact the judicial assistant for
the judicial officer currently assigned to the criminal case to request a
modification.” Counsel explained that it had taken Father three months to obtain
the initial modification, that he had spent considerable time interacting with the
public defender’s office attempting to get a further modification, and that counsel
herself had unsuccessfully sought to obtain a modification. The court stated: “I’m
not supposed to be talking to the criminal court judges. They are not supposed to
5
June’s counsel raised no objection to liberalized visitation.
4
be talking to me.” The court insisted that it was up to Father to “stay[] in the
[public defender’s] office all day long until he reaches somebody, a supervisor or
somebody that will listen to him then get it done.” Following the hearing, the court
issued an order stating, “Father may have unmonitored day visits with the child,
June, if Father can have [the] criminal court protective order modified.” Father
appealed.
DISCUSSION
Father contends that the juvenile court erred by failing to contact the
criminal court to request modification of the criminal court restraining order
pursuant to Local Rule 8.34(d)(1). We agree. Local Rule 8.34 “sets forth the court
communication protocol for Domestic Violence and Child Custody Orders as
required by the California Rules of Court.”6 (L.A. Sup. Ct. Local Rules, rule
8.34(a).) It requires the judicial assistant for a judicial officer who determines that
visitation should be different than that provided for in a criminal protective order to
contact the judicial assistant for the judicial officer assigned to the criminal case to
request modification. (Rule 8.34(d).) Here, Father had complied with the
components of his reunification program, and the juvenile judge concluded --
without objection from any party -- that unmonitored visitation was appropriate,
but apparently believed it was improper for juvenile court personnel to assist
6
Rule 5.445(c)(1) and (c)(2) of the California Rules of Court provides that every
superior court must adopt local rules establishing “[a] procedure for communication
among courts issuing criminal court protective orders and courts issuing orders involving
child custody and visitation” and “[a] procedure by which the court that has issued a
criminal court protective order may, after consultation with a court that has issued a
subsequent child custody or visitation order, modify the criminal court protective order to
allow or restrict contact between the person restrained by the order and his or her
children.”
5
Father in obtaining a modification of the criminal restraining order. This was
incorrect. Pursuant to Local rule 8.34(d)(1), the judge should have instructed his
judicial assistant to communicate with the judicial assistant for the criminal judge
who issued the restraining order to initiate modification.
The court’s order is reversed and the matter is remanded to follow the
correct procedure. On remand, the court may consider events that have transpired
or circumstances that have changed during the pendency of this appeal. (See In re
C.M. (2014) 232 Cal.App.4th 1394, 1405.)
6
DISPOSITION
The order of November 2, 2015 is reversed. The matter is remanded for
further proceedings consistent with the views expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
COLLINS, J.
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