Filed 10/28/20 In re M.C. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re M.C. et al., Persons Coming B303564
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
LOS ANGELES COUNTY 18CCJP04364A-B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
V.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rudolph A. Diaz, Judge. Dismissed in part,
reversed in part, and remanded with directions.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham, County
Counsel, Kim Nemoy, Acting Assistant County Counsel, and
Peter A. Ferrera, Deputy County Counsel, for Plaintiff and
Respondent.
V.C. (Mother) appeals a juvenile court order suspending
her visitation rights with two of her children, Mykel and Mykah
(collectively, the Minors). Mother contends the court improperly
issued an order suspending her visits without adequate notice to
her, and without holding an evidentiary hearing. In the
alternative, Mother argues the juvenile court’s order was
substantively an abuse of the court’s discretion. We consider,
preliminarily, whether the order as to Mykah is appealable even
though there had not been a disposition hearing for him at the
time the appeal was noticed (there had been a disposition as to
Mykel). The bulk of our discussion, however, addresses whether
Mother had adequate notice that her visitation could be
suspended.
I. BACKGROUND
A. Pertinent Case History
1. Proceedings regarding Mykel
Mother gave birth to Mykel in July 2018. Shortly
thereafter, the Los Angeles County Department of Children and
Family Services (“the Department”) began investigating a
referral alleging Mother intended to leave the hospital against
medical advice. The Department sought and obtained an order
removing Mykel from Mother’s custody; he was placed with a
foster parent.
The Department filed a petition under Welfare and
Institutions Code section 300, subdivisions (b)(1) and (j)1 alleging
Mother suffered from mental and emotional problems including
depression; Mykel’s father (Father) suffered from mental and
emotional problems including post-traumatic stress disorder;
both parents failed to seek mental health treatment; and both
parents’ respective mental and emotional problems placed Mykel
1
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
2
at substantial risk of serious physical harm. As to Mother, the
petition further alleged three of her older children (Mykel’s half-
siblings) had previously been declared dependents of the San
Bernardino County Juvenile Court due to Mother’s mental and
emotional problems.
At a jurisdiction and disposition hearing in October 2018,
the juvenile court sustained two counts of the dependency
petition alleged against Mother (after amending the petition to
delete a reference that Mother suffers specifically from
depression). The court dismissed the count against Father in its
entirety. The court ordered the Department to provide both
parents with family reunification services and granted the
parents monitored visitation with the Minors.
In a last minute information report filed prior to a review
hearing approximately six months later, the Department
described certain visits its personnel had monitored. When
Mother and Father arrived at the wrong time for one visit,
Mother slapped Father in the lobby of the Department’s offices
(Mykel was not present). During another monitored visit, Mother
became angry at a Department social worker and yelled and
cursed; the social worker ended the visit early as a result. The
Department reported it was extremely difficult to facilitate
extended and multiple visits for the family and requested the
court decrease visitation.
The court held a contested six-month review hearing in
June 2019. It found continued jurisdiction was necessary and
returning Mykel to his parents would create a substantial risk of
detriment to him. The court ordered reunification services were
to continue, denied the Department’s request to limit visitation,
and kept its prior visitation order in place.
2. The initial petition regarding Mykah
In July 2019, Mother gave birth to Mykah, her second child
with Father. The Department began investigating a referral the
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day he was born. Hospital personnel reported Mother had not
allowed the hospital to run certain tests, was not following
through with hospital recommendations, and wanted to leave the
hospital with Mykah against medical advice. The Department
took Mykah into protective custody.
The Department filed a two-count petition under section
300, subdivisions (b)(1) and (j) alleging Mother’s mental and
emotional problems put Mykah at risk of harm. Mykah’s case
was assigned to a different judge than Mykel’s case. The court
held a detention hearing and detained Mykah. The court ordered
the Department to provide family reunification and other services
to Mother and Father, and ordered monitored visitation.
Mother and Father each filed section 388 petitions seeking
to have visitation liberalized with Mykel and Mykah. The
hearings on the petitions were scheduled for different dates.
3. The amended petition for Mykah
The Department filed an amended petition in Mykah’s
case, this time alleging seven counts, five against Mother and two
against Father. The counts against Mother are alleged under
section 300 subdivisions (b)(1) and (j). They allege Mother has an
unresolved history of failing to provide appropriate parental
supervision to Mykah’s siblings and half-siblings; has had
multiple dependency petitions sustained against her; has been
the subject of many referrals to the Department regarding
medical neglect, chronic homelessness, and mental health issues;
and has never demonstrated enough progress for the courts to
return Mykah’s siblings or half-siblings to her care.
The counts alleged against Mother also described recent
concerning behavior, including, among other things: (1)
exhibiting paranoia and delusional beliefs—for instance, accusing
Mykel’s foster mother of abusing him, stating a doctor was trying
to kill her baby while she was pregnant, stating Mykah was
detained due to a Hispanic conspiracy, and stating the army had
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kidnapped her and done things to her; (2) engaging in volatile,
erratic, unpredictable, and aggressively threatening behavior,
including slapping Father’s face in the lobby of the Department’s
offices and causing visitation monitors to refuse to monitor her
visitation out of concern for their own safety, (3) receiving social
security payments for depression but not obtaining treatment or
medication to address depression, and (4) refusing shelter
housing and preferring to live a homeless lifestyle, which was
detrimental to infant Mykah.2
4. Additional relevant proceedings
The juvenile court was set to hold a twelve-month review
hearing in Mykel’s case in September 2019, but the court
continued the hearing because the Department changed its
recommendation regarding reunification services in a last minute
information report filed the day of the hearing (rendering notice
deficient). The court also trailed the hearing on the parents’
section 388 petitions. The court ordered the parents were to visit
Mykel separately, not because they presented any safety risk
when visiting jointly, but because the court believed it would
benefit from having information regarding how the parents visit
separately before the next hearing.
The juvenile court held the continued twelve-month
hearing in Mykel’s case the following month. It set a contest
hearing for December, trailed the section 388 petitions again, and
2
As to Father, the petition alleged he demonstrated an
inability to recognize Mother suffers from unresolved and
untreated mental health issues and is unaware her behaviors
pose a risk of harm to Mykah. The Department specifically
alleged Father had been present during Mother’s visits with
Mykah but neither took action to safeguard Mykah from Mother’s
behavior nor acknowledged when her behavior was
inappropriate.
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granted parents’ request to reinstate joint visits, which were to
remain monitored.
In October 2019, a Department social worker transporting
Minors to a visit with parents accidentally dropped Mykah,
causing him to suffer a skull fracture and a small subdural
hemorrhage. Hospital personnel who interacted with Mother and
Father at Mykah’s bedside reported the parents were very angry,
uncooperative, and refused to speak to anyone.
B. The December 2019 Hearings Involving Visitation
That Are at Issue in This Appeal
1. The initial hearing
In early December 2019, the parties appeared for what was
supposed to be an adjudication hearing for Mykah. The court,
however, granted a motion to continue the hearing and ordered
Mother and Father to be informed of all medical appointments
and allowed to attend so long as an approved monitor was
available and the parents were not disruptive.
While the parties were present in court, Father’s counsel
noted Mykel’s case was being heard in a different courtroom
(with different attorneys for Mother and Father) and the two
assignments were causing confusion. The juvenile court ordered
the attorneys to confer regarding the consolidation of the Minors’
cases and set a hearing to discuss the transfer of Mykel’s case.
The hearing was scheduled as a “receipt of report” hearing.
2. The last minute information reports
The Department prepared a last minute information report
for the receipt of report hearing set in Mykah’s case. The
document does not bear a stamp indicating when it was filed in
court, but a printed date on the side of the report reads
“12/19/19.” The last minute report summarizes medical records
pertaining to the head injury Mykah suffered when the social
worker dropped him and—more pertinent for our purposes—
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describes Mother’s misbehavior during a recent visit with the
Minors.
As recounted in the report, Mother and Father had a
monitored visit with both Minors on December 13, 2019. During
the visit, Mother called the police and paramedics to come to the
Department’s office to take Mykah to the emergency room
because she believed scars on his body (later determined to be
scars caused by eczema) revealed he had been abused. While the
family was being transported to the hospital, Mother accused a
police officer of threatening Mother because he scratched his
nose. Then, when they arrived at the hospital, Mother refused to
allow the paramedics to carry or hold Mykah, claiming there
were cancerous chemicals on the paramedic’s body that would
hurt the child. Mother ultimately agreed to give Mykah to a
social worker, but she then became angry at the social worker
and lunged at her twice while the social worker was holding
Mykah—prompting hospital staff, paramedics, and the police
who accompanied the family to the hospital to intervene and have
Mother escorted out of the hospital by security.
Although this last minute information report describes
Mother’s confrontational, bizarre behavior at the hospital, it does
not include any statements or recommendations regarding
restricting Mother’s visitation rights.
The appellate record also includes a last minute
information report filed in Mykel’s case that indicates it was
prepared for a hearing on December 19, 2019. The report,
however, bears a stamp indicating it was filed in court on
December 20, 2019. The top of the report, which has check boxes
for “information only” or “change in recommendation,” checked
just the “information only” box.
The last minute report filed in Mykel’s case includes a more
detailed account of Mother’s behavior that led to her being
escorted out of the hospital on December 13, 2019—including
reporting of a threat by Mother to kill the Department social
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workers holding the Minors before she lunged at one of them.
The report also notes the parents were unable to refrain from
being disruptive during the Minors’ medical care and states the
Department was recommending termination of Mother’s visits
with the Minors until a new evaluation was completed to assess
her current mental health.
3. The December 19 hearing
The juvenile court in Mykah’s case held a hearing on
December 19. The Department noted for the record that a
document had been submitted, and the judge acknowledged
seeing it. The transcript does not identify the document,
however, and there is no discussion of whether Mother received a
copy of it.
On the record, the Department stated it had a critical issue
to discuss that should not be rushed, and requested the hearing
be trailed until the next afternoon. The juvenile court responded
the case was on calendar to address the transfer and
consolidation of the Minors’ cases. The parents’ appointed
counsel in Mykel’s case were not present. The court stated
transfer of Mykah’s case for purposes of consolidating the two
cases in one courtroom had already been initiated and should be
completed the following day. The hearing was continued to
permit the completion of the transfer.
4. The December 20 hearing
A last minute information report in the consolidated case
that is dated and file-stamped December 20, 2019, again
described Mother’s misbehavior at the hospital on December 13,
2019, and recommended terminating her visitation. The report
was accompanied by a signed statement from the
firefighter/paramedic who had been present at the hospital; he
stated Mother approached him in a fighting stance and screamed
at a social worker, threatening to kill her. The report was also
8
accompanied by a request for a restraining order on behalf of one
of the social workers. The social worker’s accompanying
declaration averred Mother was screaming at the hospital and
opined her behavior negatively impacted the Minors, who were
upset and crying. The social worker further declared Mother
charged at her while she was holding one of the Minors,
threatening to kill her and swearing at her.
The juvenile court that had been presiding over Mykah’s
case held an appearance progress hearing for both cases (now
consolidated) on the same date as the filed stamp on the
Department’s last minute information report: December 20, 2019.
When the discussion turned to Mother’s visitation, the
Department urged the court to suspend Mother’s visitation with
the Minors—explaining the Department believed there was a
basis in what it called “today[’s]” last minute information report
to do so.
Mother’s attorney objected to any change in visitation
because no proper advance notice had been given and neither the
Department nor Minor’s counsel had filed a motion to change the
court’s prior visitation order. Mother’s attorney emphasized the
parties were in court only for a progress hearing and to receive
reports. Mother’s attorney complained that proceeding to
suspend Mother’s visitation violated due process principles
because she had no opportunity to defend against what would
essentially be a detriment finding.
Minors’ counsel argued the court had authority to make
any emergency order necessary for the safety of the Minors and
would join in an emergency 388 filed by the Department to
change the existing visitation order. Minors’ counsel also noted
the parents had been warned to behave at any medical
appointments they attended. Mother personally interjected
during argument by counsel, and the court had Mother escorted
out of the courtroom.
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The juvenile court observed Mother’s mental health was at
the heart of the issues being discussed and noted Mother became
confrontational, aggressive, and had threatened a social worker.
The court also remarked Mother had trouble controlling herself
when she appeared in court, and the court believed Mother’s
outbursts were detrimental to the Minors. The court ordered
Mother’s visits with the Minors suspended until further court
order. Father could continue with monitored visitation, but
Mother was not to come within one-hundred feet of the visitation
site. 3
II. DISCUSSION
We agree with the Department that the juvenile court’s
visitation order—as to Mykah—is not appealable because it is not
a post-disposition order; we will therefore dismiss the appeal
insofar as it challenges the order for visitation with Mykah. As to
Mykel, however, the challenge to the visitation order is properly
before us and, so far as the record reveals, Mother had no
advance notice the Department intended to ask the court to
suspend her visitation with the Minors at the hearing where the
court ordered the requested suspension. This deprived Mother of
the opportunity to prepare for the hearing and to muster any
available contrary evidence. While Mother would have difficulty
establishing an order suspending visitation is an abuse of
discretion on the record as it stands, Mother must have the
opportunity to make a record of her own—and it is reasonably
probable the juvenile court would impose some lesser restriction
on her visitation rights, rather than suspending visitation
3
In this appeal from the court’s visitation order, the
Department moved us to judicially notice a minute order from an
April 17, 2020, hearing that indicates adjudication proceedings
for Mykah were then still ongoing. We grant the request, but
find the minute order immaterial to our resolution of the appeal.
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altogether, if she is given the opportunity to introduce
countervailing evidence.
A. The Order Is Not Appealable as to Mykah
The Department argues the order suspending Mother’s
visits with Mykah is unappealable because the disposition order
is the first appealable order in a dependency matter, Mykah’s
case was pre-disposition when the juvenile court issued its order
suspending visits, and was still pre-disposition as of April 2020.
Mother argues that because Mykah’s case was consolidated with
Mykel’s prior to the issuance of the visitation order, an
appealable order had, in fact, already been issued in the case.
The Department’s view of the matter is correct. No disposition
order as to Mykah had issued at the time of the order challenged
in this appeal, and we shall dismiss the appeal as to Mykah for
that reason. We also decline to exercise our discretion to
partially treat the appeal before us as a petition for extraordinary
writ relief.
B. Reversal as to Mykel Is Required Because Mother Was
Not Given Adequate Notice
Mother contends the juvenile court deprived her of
adequate notice by suspending her visitation rights with Mykel
without a petition for modification under sections 385 or 388.
Our review of the contention is de novo. (In re Dakota H. (2005)
132 Cal.App.4th 212, 222.)
There are two procedural avenues by which a juvenile
court’s visitation order can be properly modified: a petition filed
by a party under section 388,4 or a court’s own action under
4
“When a change in orders is being sought and the pertinent
statutes do not otherwise provide a method for change, the proper
method is a motion pursuant to section 388.” (In re Lance V.
(2001) 90 Cal.App.4th 668, 675 (Lance V.).) “‘Section 388 plays a
vital role in the statutory scheme by allowing the juvenile court
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section 385. Because the Department did not file a petition
under section 388 seeking to change the visitation order, we look
to section 385 to determine the propriety of the order at issue
here.
Pursuant to section 385, “[a]ny order made by the court in
the case of any person subject to its jurisdiction may at any time
be changed, modified, or set aside, as the judge deems meet and
proper. . . .” A judge’s ability to make such a change is not
unfettered, however. Rather, it is “subject to such procedural
requirements as are imposed by [Article 12 of the Welfare and
Institutions Code].” (§ 385.)
Section 386 establishes one such procedural requirement.
It provides: “No order changing, modifying, or setting aside a
previous order of the juvenile court shall be made either in
chambers, or otherwise, unless prior notice of the application
therefor has been given by the judge or the clerk of the court to
the social worker and to the child’s counsel of record, or, if there
is no counsel of record, to the child and his or her parent or
guardian.” (§ 386.) Precedent reinforces the importance of
notice. (See, e.g., In re Andrew A. (2010) 183 Cal.App.4th 1518,
1528 [“[A]lthough a juvenile court has the authority
under section 385 to change, modify or set aside a prior order,
that action may be taken only ‘after providing the parties with
notice and the opportunity to be heard’”]; Nickolas F. v. Superior
Court (2006) 144 Cal.App.4th 92, 111, fn. 16 [“Although section
386 mandates notice to a parent only when the child is not
represented by counsel, when a modification of a prior order may
affect the interests of the parent or the child, assuming parental
to modify existing orders in response to new evidence and
changed circumstances.’ [Citation.] It ‘contains procedural
safeguards designed to protect the due process rights of those
whose interests will likely be affected by the decision.’
[Citation.]” (Id. at 676.)
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rights have not been terminated, due process requires that the
court provide the parent with notice and an opportunity to be
heard”]; In re Joshua M. (1998) 66 Cal.App.4th 458, 471 [“‘[T]he
right to notice and an opportunity to be heard “must be granted
at a meaningful time and in a meaningful manner”’”].)
Mother was not given advance notice that the hearing on
December 20, 2019, might result in a change to her visitation
rights. The December 20 hearing was an appearance progress
hearing, continued from the receipt of report hearing scheduled
the previous day. Though the record includes a last minute
information report in Mykah’s case dated December 19, that
report, which bears no file stamp, detailed the incident at the
hospital but did not recommend suspension of Mother’s visitation
rights.
In arguing there was no notice error, the Department cites
a different last minute information report, one that did
recommend termination of visitation, that is also dated for a
December 19, 2019, hearing. The file stamp on that report,
however, indicates it was filed on December 20, 2019, i.e., the
same day as the hearing at which Mother’s visitation rights were
suspended.5 Nothing in the record indicates it was filed the day
before,6 or that Mother received a copy of that report the day
before. There is thus no evidence Mother received notice prior to
5
Significantly, the Department’s attorney at the December
20, 2019, hearing where visitation was suspended also described
the last minute information before the court as if it was
submitted that same day.
6
The Reporter’s Transcript for the December 19 hearing
does indicate the Department submitted a document to the
juvenile court on that date, but it does not name or otherwise
identify the document. There is thus no evidence in the record
that contradicts the representation by Mother’s attorney that
there had been no proper notice of the Department’s intention to
seek a revocation of Mother’s visitation rights.
13
the hearing that the Department was requesting termination or
suspension of her visitation rights.
The Department also argues there was no notice problem
because Mother was present at the hearing and did not ask to
present evidence, cross-examine anyone, or continue the
proceedings. It is true Mother was present at and represented by
counsel at the hearing, but the Department’s argument rings
hollow when Mother’s attorney did object that Mother had no
notice visitation would be at issue and explained the lack of
notice hampered (if not completely foreclosed) the ability to
defend against a change to the visitation order. This was not, in
other words, notice and an opportunity to be heard at a
“meaningful time and in a meaningful manner.” (In re Joshua
M., supra, 66 Cal.App.4th at 471.)
The failure to provide adequate notice prejudiced Mother.
The juvenile court’s existing order at the time visitation was
suspended still required provision of reunification services, and
“[v]isitation between a dependent child and his or her parents is
an essential component of a reunification plan . . . .” (In re Mark
L. (2001) 94 Cal.App.4th 573, 580, disapproved on another
ground in Conservatorship of O.B. (2020) 9 Cal.5th 989.)
Mother argues that if she had notice her visitation with
Minors would be at issue during the hearing, she could have
presented evidence showing the December 13 incident was a
single incident that only indirectly affected her children and that
her visitation was overall beneficial to Minors. We think that is
enough to establish the requisite probability of a more favorable
result—which would include an order that placed additional
limits or conditions on visitation, rather than suspending
visitation altogether. The Department again counters that
Mother had a sufficient opportunity to be heard because she was
present in court, but springing an unexpected issue on a party
and hoping her attorney can build the plane while flying it is no
substitute for adequate notice that would allow for preparing a
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defense, securing documentary evidence, and contacting potential
witnesses.
The Department additionally argues that if any due process
error occurred, it is harmless because additional hearings
(adjudication for Mykah and a twelve-month review for Mykel)
were pending, which would allow Mother to ask the court to
readdress visitation and request the opportunity to present
evidence. This argument is flawed for two reasons. First, the
existence of future hearings does not render harmless the
deprivation of visitation in the interim. Even if we assume, as
the Department does, that the juvenile court would have
suspended visitation between the December 20 hearing and any
future continued date, that does not mean it would have set the
hearing on the request for an earlier date given Mother’s
objection and the Department’s representation the situation was
an emergency. Second, once the order without adequate notice
issued, Mother would bear a burden to establish changed
circumstances to succeed on a section 388 petition that she would
not have borne at a hearing with adequate notice of the
Department’s request to change the existing visitation order.
Based on the foregoing, we remand for the court to conduct
a properly noticed hearing on the issue of visitation. “We
recognize, however, that [more than six months have] transpired
since this visitation order was made and that circumstances may
have changed in the interim. On remand, the juvenile court
should consider ........current circumstances in crafting any new
visitation order.” (In re Shawna M. (1993) 19 Cal.App.4th 1686,
1691.)
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DISPOSITION
The appeal, as to Mykah, is dismissed. The juvenile court’s
order suspending visitation is reversed as to Mykel, and the
matter is remanded to the juvenile court for further proceedings
consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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