L. A. Cnty. Dep't of Children & Family Servs. v. Justin K. (In re Bradley K.)

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In re BRADLEY K. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JUSTIN K., Defendant and Appellant.

B314259

California Court of Appeals, Second District, Seventh Division

June 13, 2022

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County, No 20CCJP00211B-C Debra R. Archuleta, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P. J.

At a review hearing pursuant to Welfare and Institutions Code section 364, ^[1] the juvenile court terminated dependency jurisdiction over now-five-year-old twins Bradley K. and Nolan K. and awarded sole physical and legal custody to their mother, Miranda L., with monitored visitation for their father, Justin K. Justin appeals the orders, contending he did not receive proper notice of the hearing, denying him due process; the court erred in denying a continuance of the hearing; and the court abused its discretion when awarding sole legal custody to Miranda and limiting him to monitored visits. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Sustained Petition

On March 11, 2020, following Justin's and Miranda's no contest pleas, the juvenile court sustained a three-count amended dependency petition pursuant to section 300 subdivision (b)(1), finding as to the first count that Justin had inappropriately disciplined Robert C., Miranda's oldest child, by head butting Robert, causing him unreasonable pain and suffering; Justin had on prior occasions verbally abused Robert; and Miranda had failed to take sufficient steps to protect Robert when she knew or should have known of Justin's excessive discipline. Justin's abusive conduct and Miranda's failure to protect Robert, the court found, endangered Bradley and Nolan, as well as Robert, placing all three children at substantial risk of serious physical harm. As to the second count the court found Justin and Miranda had a history of engaging in physical and verbal altercations in the children's presence with Justin as the aggressor; Miranda failed to protect the children by allowing Justin to reside in the home and have unlimited access to the children. In the third count the court found Justin had created a detrimental and endangering home environment in October 2019 when he brandished a gun in Robert's presence during a confrontation with Robert's father.

The evidentiary bases for the parents' no contest pleas and the juvenile court's jurisdiction findings were contained in the detention and jurisdiction/disposition reports prepared by the Los Angeles County Department of Children and Family Services and admitted into evidence at the March 11, 2020 hearing.

At the time of the events that precipitated the dependency petition, Miranda and Justin lived together with Robert, Bradley and Nolan, and Justin's two children from a prior relationship, Landon and Zeus. Following a child welfare referral in December 2019, Robert, then 11 years old, told the Department's social worker he had been playing with Landon and Zeus when Landon pushed him and Robert returned the push. Landon complained to Justin, who got angry and head-butted Robert, raising a bump on Robert's forehead and causing a headache that persisted for an hour. Robert's father, after learning of Justin's actions, came to the house to confront Justin. Justin brandished a gun during their quarrel.

Robert also reported a prior episode during which Justin had elbowed him when angry and said Justin verbally abused him on multiple occasions. According to Robert, Justin was physically violent toward Miranda ("put[ting] his hands on her") approximately twice per month. In addition, Robert recalled an incident a few weeks earlier when Justin was helping Miranda, who has mobility challenges and uses a wheelchair, get into bed. Justin picked Miranda up, dropped her on the bed, and then fell on top of her, breaking bones in her leg.

Miranda acknowledged that she and Justin argued on a weekly basis and that during arguments Justin "puts his hands on me." She described one occasion when, after she had called Justin a loser and Nolan repeated the word "loser," Justin struck both of them in the mouth. The maternal grandmother, who assists Miranda as an in-home caregiver, confirmed Justin had "popped the baby in the mouth" and then "popped" Miranda for calling him a name. Miranda described her broken leg as a "freak accident," denying that Justin had intentionally injured her, as suggested by Robert's description of the incident.

Justin denied engaging in violent behavior toward Miranda, Robert or other family members, although admitting he "slightly hit" Nolan when Nolan repeated the word "loser." When interviewed a second time both Robert and Miranda joined those denials, insisting Justin never engaged in violent or inappropriate conduct.

2. Disposition

After sustaining the section 300 petition, the court declared Bradley and Nolan dependent children of the court, removed them from the care and custody of Justin and allowed their continued release to Miranda under the supervision of the Department.^[2] The court ordered family maintenance services for Miranda, including a support group for victims of domestic violence and individual counseling with a licensed therapist to address case issues (domestic violence, child protection and coparenting). As enhancement services, Justin was ordered to participate in a program for perpetrators of domestic violence, random drug or on-demand drug testing (based on Justin's significant marijuana use) and individual counseling to address anger management, appropriate discipline and domestic violence. The court limited Justin to monitored visits with Bradley and Nolan in a neutral setting.^[3]

At the conclusion of the disposition hearing the court scheduled a section 364 review hearing for September 10, 2020. On May 11, 2020 the court advanced and continued the review hearing to February 8, 2021 due to COVID-19 court closures.

3. The Section 364 Review Hearing

a. The status review report

The Department's status report for the continued review hearing, filed January 21, 2021, stated Miranda, who did not plan to reconcile with Justin, was in full compliance with her case plan. According to the report, Miranda "has provided loving and nurturing care for each of the children, and she has consistently and carefully attended to all of their needs. Mother and the children appear to have a close bond, and no safety concerns have been observed or reported." Justin, in contrast was noncompliant with court-ordered services. He had not participated in drug/alcohol tests and provided no evidence of enrollment in a domestic violence program, parenting class or individual counseling. Justin did attend all scheduled visitation sessions (monitored by a paternal aunt) and was engaged with the children during the visits. The Department recommended the court terminate dependency jurisdiction and enter a juvenile custody order awarding Miranda sole physical and legal custody of Bradley and Nolan with monitored visits for Justin.

b. Faulty notice for the February 8, 2021 hearing

On February 8, 2021 the matter was set for a contest at the request of Justin's counsel, but the hearing was continued to April 22, 2021 because the notice of the hearing sent to Justin used Miranda's address and failed to include all required information.^[4]

c. Faulty notice for the June 1, 2021 hearing

At the outset of the case Justin filed a Judicial Council form JV-140, Notification of Mailing Address, indicating he lived at the address on either "Cara Street" or "Cora Street" in Sunland. As the Department's counsel subsequently explained, whether the second letter in Justin's handwritten street address on the JV-140 form is an "a" or an "o" was unclear. Nevertheless, at the detention hearing the court had confirmed the correct spelling of the street name as "Cora Street."

On March 30, 2021 the Department sent Justin a notice for the April 22, 2021 review hearing, addressed to the correct street number on the incorrect street ("Cara Street") in Sunland, California 91040.

On April 2, 2021, on the court's own motion, the April 22, 2021 hearing date was vacated, and the matter continued to June 1, 2021. On May 24, 2021 the Department sent Justin notice of the new hearing date, again incorrectly addressed to Cara Street in Sunland.

At the remote hearing on June 1, 2021, for which Justin did not call in, his counsel objected to notice: "Notice was short. It was only sent nine days ago."^[5] Asked by the court if counsel was waiving the defect, counsel responded, "No, I am not." Justin's attorney did not mention any error in the address used for notice or indicate Justin did not actually receive the notice.

The court continued the matter to July 21, 2021 and directed the Department to provide proper notice. The court also ordered the Department to provide an update on Justin's progress in programs and visitation.

d. Notice and the last minute information report

On June 22, 2021 the Department sent Justin notice of the new July 21, 2021 hearing date. The notice was again sent to Cara Street in Sunland.

In a last minute information report filed July 7, 2021, the Department advised the court Justin had stated he had completed individual counseling and provided certificates of completion for an online domestic violence course and two online parenting courses. The Department attempted to confirm Justin's participation in...