In re Antonio E. CA2/7

Filed 2/10/22 In re Antonio E. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ANTONIO E., JR., et al., B311659
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP08119)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANTONIO E., SR.,

Defendant and Appellant.

LORENA H.,

Defendant and Respondent.
 APPEAL from an order of the Superior Court of Los
Angeles County, Mary E. Kelly, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
Daniel G. Rooney, under appointment by the Court of
Appeal, for Defendant and Respondent.

__________________________

Antonio E., Sr. (Father), appeals from the final custody
order entered by the juvenile court when it terminated
jurisdiction over 15-year-old twins Antonio E., Jr. (Antonio), and
Manuel E. at the Welfare and Institutions Code1 section 364
status review hearing. Father contends the court violated his
due process rights in entering the custody order granting
Lorena H. (Mother) sole legal and physical custody of the children
without providing him actual notice of the hearing and abused its
discretion in limiting Father’s visitation to one monitored visit
per year. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Referral, Investigation, and Petition
On October 17, 2019 the Los Angeles County Department
of Children and Family Services (Department) received a referral

1 Further undesignated statutory references are to the
Welfare and Institutions Code.

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through the child abuse hotline alleging emotional abuse of
Antonio and Manuel by Father. The reporter stated that the
previous night Father became angry with Mother because he
believed she had been unfaithful. Father grabbed Mother by the
hair, dragged her 200 feet around the mobile home park where
the family lived, and hit her in the face multiple times. Mother
escaped Father’s grasp, ran into the family home, and locked the
door. Father forced his way inside and continued to hit Mother
on her face and body. Mother again escaped and called 911.
Mother had a large bruise on the left side of her face. Manuel,
then 13 years old, unsuccessfully tried to stop Father, and both
children witnessed the fight.
Father left the scene before the police arrived, and the
responding officers assisted Mother in obtaining an emergency
protective order. Mother told a social worker that Father hit her
with his fist and slapped her, and she sustained bruising for
which she received medical treatment at the hospital.2 The
children were not injured.
On October 23 the social worker interviewed the children at
school. Manuel stated he witnessed the fight and tried to
intervene to protect Mother. Antonio stated he saw Father drag
Mother and strike her with his open hands. Manuel was not
afraid of Father but felt “‘sad and frustrated’” and thought
Father’s treatment of Mother was “‘not right.’” Manuel felt safe
with Mother, stating, “‘[M]y mother is always with me and my
brother . . . . I believe Father is the problem.’” Antonio was not

2 According to the Pomona Police Department report, Father
also threatened to kill Mother if she called the police.

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afraid of Father, but stated he “‘prefer[red] to keep a distance
from him when he is mad with mom.’”3
Also on October 23 Pomona Police Department officers
arrested Father, who was hiding in a shed by the family home.
Father was arrested for spousal abuse, making a criminal threat,
and child cruelty. On October 25 the superior court issued a
three-year criminal protective order restraining Father from
contacting Mother and the children and coming within 100 yards
of them or the family home.
On the morning of November 21 the social worker visited
Mother’s home and found an adult man inside. Mother,
appearing anxious, stated the man was a friend. Later that day
Mother informed the social worker the man was Father, and he
had threatened to kill her if she did not allow him access to the
home. On November 26 Mother told the social worker Father
followed her car on multiple occasions and continued to harass
her in person and by telephone.
On December 18 Mother reported Father was living in the
family home, and she had moved with the children into the home
of a female friend. That day the social worker reached Father by
telephone, and Father confirmed he was living in the home.
Father said he was complying with the criminal protective order
and had not had contact with Mother or the children, but he
would like to visit the children.
On December 20, 2019 the Department filed a petition on
behalf of Antonio and Manuel under section 300, subdivisions (a)
and (b)(1), alleging Father engaged in a violent altercation with

3 According to the police report, on the night of the October
16, 2019 incident, Manuel told police he was afraid that Father
might hurt Mother, and Antonio was in fear for Mother’s life.

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Mother in the children’s presence and caused her injury; Father
had been arrested for domestic violence, threats, and child
cruelty; Father had violated a restraining order; and Mother
failed to protect the children from Father’s abuse. At the
December 23 detention hearing, the juvenile court ordered the
children detained from Father and released to Mother. Father
filed a notification of mailing address (Judicial Council form JV-
140) (form JV-140) listing the address of the family home in
Pomona as his address.

B. The Jurisdiction and Disposition Report and Hearing
The dependency investigator separately interviewed
Antonio, Manuel, and Mother on January 30, 2020. Antonio now
reported there was no history of violence between the parents, he
did not witness them physically fighting on October 16, 2019, and
he had lied to the police about the incident because he was tired
and “‘wanted it to be over.’”
Manuel told the dependency investigator he saw only part
of his parent’s argument and “‘[i]t was not that violent.’”
Although Father grabbed Mother on the shoulder and seemed as
though he was going to hit her, Manuel did not see Father strike
Mother or pull her hair. He acknowledged Mother was bruised
and went to the hospital. Manuel felt safe with both parents and
hoped the family could live together in the same home.
Mother told the dependency investigator Father had
changed over the past two years, and she believed Father had
started to use drugs.4 Mother reported that about two weeks

4 Father was arrested in 2016 for possession of drug
paraphernalia, in 2018 for possession of drug paraphernalia and

5
earlier, Father attacked a truck in which Mother was sitting with
her male friend. According to the police report, on January 15,
2020 Father came up to the truck and started banging on the
driver’s side window and shouting at Mother’s friend. Father
kicked the driver’s-side door, causing a dent, then broke the rear
window and pulled back on the friend’s seatbelt. Mother told the
responding police officers that Father had been violent with her
in the past and threatened to kill anyone she tried to date.
Father told the dependency investigator during a
February 3, 2020 interview that he and Mother argued, but he
had never struck Mother, “‘[a]nd never in front of the kids.’” The
dependency investigator believed the family remained at a very
high risk and expressed a concern that the children were
minimizing past events and Father was denying there was
domestic violence.
At the February 19, 2020 jurisdiction and disposition
hearing, Mother and Father pleaded no contest to the allegations
under section 300, subdivision (b)(1); the court dismissed the
allegation under section 300, subdivision (a).5 The juvenile court
declared the children dependents of the court, removed them
from Father’s custody, and released them to Mother under
Department supervision. The court granted Father three
monitored visits per week for one to three hours each visit. The

possession of a controlled substance, and in 2019 for possession of
drug paraphernalia and attempted receipt of stolen property, but
Father had suffered no convictions as of January 31, 2020.
5 The petition was amended to strike the allegation Father
had been arrested for domestic violence, threats, and child
cruelty, and the allegation that Mother failed to protect the
children from Father’s abuse.

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court also ordered the Department to provide family reunification
services to Father. Father was ordered to participate in a
domestic violence program, individual counseling to address case
issues, a drug program, and random drug testing. The court
ordered the parents to appear for a six-month status review
hearing (§ 364) on August 27, 2020, which was later continued to
March 15, 2021 as a result of the COVID-19 pandemic. The court
ordered the Department to provide notice to the parties of the
continued hearing.

C. The Status Review Reports and Hearing
The August 4, 2020 status review report stated Father had
not contacted the Department or visited with the children since
the jurisdiction hearing. The Department tried to contact Father
numerous times by telephone but received no answer. A criminal
database search indicated Father had been arrested on May 12,
2020 and sent to a detention center, and Father was currently
incarcerated in San Bernardino County. Father did not enroll in
any court-ordered programs. The children appeared healthy,
happy, and bonded with Mother, although Mother reported they
missed Father and blamed her for his absence. Manuel stated, “‘I
am very happy here with mom and feel safe.’” Antonio stated, “‘I
am happy with my mom, I think I understand better what
happened between my mom and dad.’”
The Department sent referrals to Father at his last known
address (on the form JV-140), but it received no response.
However, on October 20, 2020 Father met with the social worker
at the Department’s office, and Father reported he had recently
been released from jail after being incarcerated for four to five
months. Father stated he planned to ask his brother to facilitate

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monitored visits with the children. After the meeting, however,
Father did not answer the social worker’s calls and failed to
contact the social worker again.
The Department later determined Father had been
arrested for petty theft on February 6, 2021 and released. Father
still had not submitted proof of enrollment in any court-
mandated programs. The Department recommended the juvenile
court terminate jurisdiction with an order granting full custody to
Mother and monitored visits for Father. On March 3, 2021 the
Department sent notice of its recommendation and the March 25
status review hearing to Father at his last known address (on the
form JV-140) and to his attorney.
As of the March 9, 2021 status review report, Father had
not visited the children for more than a year. Mother did not
intend to return to Father, and she felt Father “‘prefers drugs
more than his own children.’” The children were doing very well
in school, and Mother reported her adult son was also residing
with the family and providing support for the children.
Father did not appear at the March 25, 2021 status review
hearing. Father’s attorney objected to the hearing notice,
arguing the Department knew Father failed to respond to prior
notices sent to his last known address yet failed to try to locate
Father, for example, by contacting relatives. The Department
countered that notice was properly sent to the address listed on
Father’s form JV-140. The juvenile court agreed that notice was
proper, although it observed that if it had conducted the
detention hearing,6 it would have admonished the parents that

6 Juvenile Court Referee Cynthia A. Zuzga presided over the
December 23, 2019 detention hearing. Judge Mary E. Kelly
presided over the subsequent proceedings.

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they must keep their form JV-140 address up to date. The court
initially indicated it would continue the hearing out of an
abundance of caution, but it reconsidered its decision and
overruled Father’s objection to notice in light of evidence the
social worker met with Father on October 20, 2020.
The juvenile court terminated jurisdiction, awarded Mother
sole custody of the children, and granted Father one monitored
visit each year on Father’s Day. The court stated, “In the report
it’s noted that the children have not seen their father for more
than a year. The children are disappointed. However, as
[M]other indicated, Father prefers drugs more than his
child[ren]. That seems to show a lot of insight into Father’s lack
of contact with the Department as well.” The parties and their
counsel did not address Father’s visitation at the hearing. The
court stayed its order pending receipt of a juvenile custody order
from the Department. On April 1 the court entered the custody
order. Father timely appealed.7

DISCUSSION

A. The Juvenile Court’s Issuance of the Final Custody Order
Did Not Violate Father’s Due Process Rights
Father contends the juvenile court violated his due process
rights by significantly limiting his visitation (to one day each

7 Although Father filed his notice of appeal on March 25,
2021, before the juvenile custody order was entered, we deem the
premature notice of appeal to have been filed immediately after
the subsequently entered order. (Fuller v. First Franklin
Financial Corp. (2013) 216 Cal.App.4th 955, 959; see Cal. Rules
of Court, rule 8.104(d)(2).)

9
year) without actual notice or an opportunity to be heard.
Father’s contention lacks merit.
We review Father’s due process challenge de novo. (See In
re D.H. (2017) 14 Cal.App.5th 719, 728, 731-732 [court reviews de
novo presumed father’s due process challenge to termination of
his parental rights without making finding of his unfitness or
detriment to child]; In re A.B. (2014) 230 Cal.App.4th 1420, 1434
[court reviews de novo mother’s due process challenge based on
failure to hold evidentiary hearing before denying her family
reunification services and issuing exit orders allowing only
monitored visitation with her children].)
Section 364, subdivision (a), provides, “Every hearing in
which an order is made placing a child under the supervision of
the juvenile court pursuant to Section 300 and in which the child
is not removed from the physical custody of his or her parent or
guardian shall be continued to a specific future date not to exceed
six months after the date of the original dispositional
hearing. . . . The court shall advise all persons present of the
date of the future hearings, of their rights to be present, and to be
represented by counsel.” Section 292, subdivision (d), requires
that notice of a section 364 status review hearing contain “a
statement regarding the nature of the hearing to be held and any
change in the custody or status of the child being recommended
by the supervising agency” and “a statement that the child and
the parent or parents or legal guardian or guardians have a right
to be present at the hearing, to be represented by counsel at the
hearing and the procedure for obtaining appointed counsel, and
to present evidence regarding the proper disposition of the case.”
Section 292, subdivision (d), provides further, “The notice
shall also state that if the parent or parents or legal guardian or

10
guardians fail to appear, the court may proceed without them.”
Service of the notice must be made to the “presumed father or
any father receiving services” (§ 292, subd. (a)(2)), and must be
made by personal service, first-class mail, or certified mail with
return receipt requested, “addressed to the last known address of
the person to be noticed . . . .” (Id., subd. (e).) Further, “notice of
the hearing shall be served not earlier than 30 days, nor later
than 15 days, before the hearing.” (Id., subd. (c); see Cal. Rules of
Court, rule 5.706(a) [“The petitioner or the court clerk must give
notice of review hearings on Notice of Review Hearing (form JV-
280), in the manner provided in section 292, to all persons
required to receive notice under section 292 . . . .”].)
The notice to Father complied with section 292’s notice
requirements. On March 3, 2020, three weeks before the
March 25, 2021 hearing, the Department served Father with a
notice of review hearing (using Judicial Council form JV-280) by
first-class mail to his last known address, which was the address
listed on Father’s December 23, 2019 form JV-140. The notice of
review hearing, as well as the attached status report, advised
Father, as required by section 292, subdivision (d), that the
Department was recommending the juvenile court “terminate
jurisdiction with a family law order giving sole legal, sole
physical custody to Mother [and] monitored visits for Father.”
(Capitalization omitted.) The form also stated, as required by
section 292, subdivision (d), that the court would proceed with
the hearing even if Father was not present, and at the hearing
the court could “remove custody from parents . . . and make
orders regarding placement, visitation and services.”
The Department was not required, as Father argued below,
to undertake additional efforts to locate Father. Section 316.1,

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subdivision (a), provides, “Upon his or her appearance before the
court, each parent or guardian shall designate for the court his or
her permanent mailing address.” (Accord, Cal. Rules of Court,
rule 5.534(i).) A parent’s designated permanent mailing address
provided at the first appearance “is used by the court and the
social services agency for notice purposes unless and until the
parent provides written notice of a new mailing address.” (In re
A.H. (2013) 218 Cal.App.4th 337, 348, citing § 316.1, subd. (a).)
Service of a hearing notice by mailing notice to the address
reflected on a parent’s form JV-140 is effective even if the
juvenile court has reason to know the notice “was not served to
an address best calculated to provide [the parent] actual notice.”
(In re J.R. (2019) 42 Cal.App.5th 513, 528 [mailing to address on
mother’s latest form JV-140 was sufficient to satisfy mother’s due
process right to notice of requirement to file writ challenging
termination of family reunification services and setting section
366.26 hearing, notwithstanding Department’s knowledge that
Mother had been residing at other address for seven months].)
Moreover, it is undisputed Father’s attorney was served with
notice, and Father did not submit any evidence showing he had a
different address or was unaware of the hearing.
Father also contends the court’s modifications to the
existing visitation order were so dramatic (limiting him to one
visit per year) that it was “tantamount to finding of detriment,”
without giving Father notice of the juvenile court’s intent and an
opportunity to contest the findings. This argument fails because
Father was on notice that the Department in its status review
report recommended termination of jurisdiction at the status
review hearing. Section 362.4, subdivision (a), provides that “[i]f
the juvenile court terminates its jurisdiction over a minor who

12
has been adjudged a dependent child . . . the juvenile court on its
own motion, may issue . . . an order determining the custody of,
or visitation with, the child.” The Department also notified
Father it recommended Mother have sole legal and physical
custody with unspecified “monitored visits for Father.”
(Capitalization omitted.) Father was therefore on notice that the
court would likely make an order at the status review hearing
regarding his visitation. Father has not cited any authority, nor
is there, for the proposition that a juvenile court has no authority
to enter a custody order that significantly differs from the
recommendation of the Department. And, as the notice mailed to
Father’s last known address made clear, the status review
hearing would proceed regardless of whether Father appeared,
and the court could enter an order removing custody from a
parent and establishing visitation. That is precisely what the
juvenile court did.

B. Father Forfeited His Argument the Juvenile Court Abused
Its Discretion in Limiting Father’s Visitation
In determining custody or visitation, the juvenile court’s
primary consideration is the best interests of the child. (In re
Chantal S. (1996) 13 Cal.4th 196, 206; In re John M. (2013)
217 Cal.App.4th 410, 421.) We review the court’s entry of a
visitation order for an abuse of discretion. (In re J.P. (2019)
37 Cal.App.5th 1111, 1119; In re S.H. (2011) 197 Cal.App.4th
1542, 1557-1558 [“dependency law affords the juvenile court
great discretion in deciding issues relating to parent-child
visitation, which discretion we will not disturb on appeal unless
the juvenile court has exceeded the bounds of reason”].)

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 Father contends the trial court abused its discretion in
restricting his visitation to one day per year because the order
was not supported by substantial evidence that visitation would
be detrimental to the children.8 However, Father forfeited this
issue because his lawyer failed to object to the custody order at
the status review hearing, and Father did not appear. (In re S.B.
(2004) 32 Cal.4th 1287, 1293 [“a reviewing court ordinarily will
not consider a challenge to a ruling if an objection could have
been but was not made in the trial court”]; In re Maria Q. (2018)
28 Cal.App.5th 577, 590 [“‘A party forfeits the right to claim error
as grounds for reversal on appeal when he or she fails to raise the
objection in the trial court.’”].) Forfeiture is not automatic, “[b]ut
the appellate court’s discretion to excuse forfeiture should be
exercised rarely and only in cases presenting an important legal
issue.” (In re S.B., at p. 1293; accord, In re C.M. (2017)
15 Cal.App.5th 376, 385; but see In re D.H., supra, (2017)
14 Cal.App.5th at p. 728 [father did not forfeit contention his due
process rights were violated by court’s termination of parental
rights without finding of parental unfitness or detriment to the
child].) Here, we have rejected Father’s due process challenge,
and his remaining challenge to the final custody order does not
raise an important issue of law; rather, Father questions whether

8 Father cites to the standard for issuance of a removal order
at the disposition hearing (not at issue here) that a child may
only be removed from a custodial parent if there is clear and
convincing evidence there is or would be a substantial danger to
the child’s physical health, safety, protection, or physical or
emotional well-being if the child is returned to the parent, and
there are no reasonable means to protect the child without
removal. (See § 361, subd. (c)(1); In re D.P. (2020) 44 Cal.App.5th
1058, 1065.)

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the juvenile court abused its broad discretion in crafting the
visitation order.
Moreover, even if Father had not forfeited his contention,
the juvenile court did not abuse its discretion in limiting Father’s
visitation to one day per year. The sustained findings included
that on October 16, 2019 Father grabbed Mother by the hair and
dragged her, struck Mother’s face with his fists, and threatened
to kill her. The children were present, and Manual attempted to
intervene to assist his Mother. In October 2019 the superior
court issued a three-year criminal protective order restraining
Father from contact with Mother, the children, and family home.
On November 27, 2019 Father was found at the family home in
violation of the order. In January 2020—just weeks before the
jurisdiction and disposition hearing—Father attacked a vehicle
while Mother and her male friend were inside. In the year
leading up to the status review hearing, Father never visited the
children; he failed to participate in any court-mandated
programs, including drug testing, counseling, and a domestic
violence program; he failed to contact the Department except for
one occasion in October 2020; and he was arrested and jailed
multiple times. Father denied there was any abuse. And
although he indicated at his meeting with the social worker that
he wanted to arrange visits with the children, he never contacted
the social worker again or returned multiple calls.
Further, there was evidence the children were healthy and
happy in Mother’s care without any visitation from Father.
Although the children initially minimized Father’s abuse and
blamed Mother for separating their family, as of early 2021 the
children completed family preservation services and counseling
and reported feeling safe and loved by Mother. Under these

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circumstances, the trial court did not abuse its broad discretion
in finding that it was in the best interests of the children for
Father not to receive more frequent visitation. (In re S.H., supra,
197 Cal.App.4th at pp. 1557-1558.)

DISPOSITION

The juvenile custody order is affirmed.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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