Filed 4/9/21 H.M. v. Superior Court CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

H.M. et al.,

Petitioners,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES et al.,

Real Parties in Interest.

B309102

Los Angeles County

Super. Ct. No.

18CCJP08044A

ORIGINAL PROCEEDINGS in mandate. Debra Archuleta, 

Judge. Petitions granted.

Law Office of Thomas Hayes, Nicole J. Johnson and Laura 

A. Menke for Petitioner H.M.

Law Office of Rachel Ewing, Steven Shenfeld and Christine 

Hernandez for Petitioner J.R.
2

Rodrigo Castro-Silva, County Counsel, and David Michael 

Miller, Deputy County Counsel, for Real Party in Interest 

Department of Children and Family Services.

_______________________________________

INTRODUCTION

H.M. (mother) and J.R. (father) petition for extraordinary 

relief from the juvenile court’s November 16, 2020 order vacating 

its prior order returning the minor, N.M., to their custody, 

terminating reunification services, and setting a selection and 

implementation hearing under Welfare and Institutions Code 

section 366.26.1 The parents contend the court violated their 

right to due process by denying them the opportunity to challenge 

new evidence submitted by the Department of Children and 

Family Services (Department) for the November 16, 2020 

proceeding. That evidence indicated that the parents may have 

violated the court’s prior order by having contact with each other. 

The parents ask us to reverse the November 16 order and 

remand the matter to the court with directions to conduct a 

contested hearing and permit the parents to testify and call 

witnesses. The Department takes no position regarding the 

issues raised by the parents, and N.M.’s counsel did not file a 

response to the petitions. We grant the petitions.

BACKGROUND

Although the underlying proceedings in this dependency 

case are extensive, the essential facts necessary to our opinion 

are straightforward. 

1 Undesignated statutory references are to the Welfare and 

Institutions Code. 
3

Mother has three children: R.M. born in 2009; M.R. born in 

2016; and N.M. born in 2017. Mother and father have two 

children in common, M.R. and N.M.

In December 2018, the Department filed a dependency 

petition under section 300, subdivisions (a), (b), and (j), on behalf 

of N.M. The Department alleged N.M. was in danger of suffering 

physical harm based on domestic violence between mother and

father (counts a-1, b-1, j-1), and father’s history of substance 

abuse (counts b-2, j-2). In January 2019, the court found 

jurisdiction over N.M. based upon four of the five counts asserted 

in the petition. At the disposition hearing, the court removed 

N.M. from the parents’ custody, awarded them monitored 

visitation provided they not visit the minor together, and ordered 

reunification services.

In September 2019, the Department filed a subsequent 

petition under section 342. The Department alleged that N.M. 

was in danger of suffering physical harm based on father’s sexual 

abuse of mother’s oldest child, R.M. (counts b-1, d-1, j-1). In 

November 2019, the court sustained the allegations asserted in 

the subsequent petition, and modified the parents’ case plans to 

include sexual abuse counseling.

On September 15, 2020, the court conducted a review 

hearing. At that hearing, the parents requested a contested 

hearing to challenge the Department’s recommendation to 

terminate reunification services and set a section 366.26 hearing. 

The court granted the parents’ requests and scheduled a 

contested hearing for November 10, 2020. The court also ordered 

the Department to have the social worker “on call” for November 

10, 2020, and ordered it to produce “Title 20s” from February 5, 

2020 through November 3, 2020.
4

1. The November 10, 2020 Review Hearing

On November 4, 2020, a Department social worker—Jenny 

Becerra— filed a last minute information in connection with the 

November 10, 2020 hearing. According to Becerra, N.M.’s 

caregiver believed that the parents continue to have contact with 

each other because they bring the same toys and bicycle to their 

visits with N.M. Both parents, however, were observed parenting 

appropriately. Although mother was attending individual 

counseling and reported that she talks about the emotional 

effects of having an open dependency case, she did not disclose to 

Becerra that she discusses case issues regarding domestic 

violence or sexual abuse awareness. Father reported that he no 

longer engages with mother, he had completed a drug and alcohol 

program, and participated in aftercare programs. Based on 

Becerra’s reunification re-assessment, the Department

recommended termination of reunification services for both 

parents.

The court conducted the 18-month review hearing on 

November 10, 2020. At the beginning of the hearing, the 

Department asked the court to terminate family reunification 

services and set a hearing under section 366.26. After admitting 

exhibits into evidence, the court allowed both parents to testify.

Mother testified by telephone and was assisted by a Spanish 

language interpreter. Father also testified and was assisted by a 

Spanish language interpreter. The Department and minor’s 

counsel did not call any witnesses.

Mother testified that she has participated in programs 

involving sexual abuse awareness, Al-Anon, domestic violence,

and parenting. Mother also testified that she no longer lives with 

father and has no intention of reunifying with him in the future.
5

When asked why it would be different if N.M. were returned to 

her custody given the court’s concerns about violations of court 

orders, mother responded that she learned from her classes “to 

first protect my children and also to protect myself.” 

For his part, father testified that he had been going to 

alcoholics anonymous meetings for six months and had completed 

parenting classes. In addition, as a result of completing a 52-

week domestic violence program, father learned to control his 

anger “and not be given [sic] to violence. More than anything to 

be able to control [his] anger.” Father testified that when at work 

his childcare plan would include his sister or other relatives 

watching N.M. And as a result of taking sexual abuse classes, 

father learned to control his mind, correct his way of looking at 

things, how he acts with other people, and his attitude. He also 

testified that he was not currently in a relationship with anyone, 

including mother, and that he had his own house. Father stated 

that he submits to weekly drug and alcohol testing and calls the 

social worker to arrange for testing when he is unable to submit 

to a previously scheduled test. 

After the parents testified, minor’s counsel asked the court 

to adopt the Department’s recommendations to terminate 

reunification services and set a section 366.26 hearing. Relying 

on the social worker’s reports, counsel argued that mother had 

continued to pursue a relationship “of some sort” with father. In 

particular, counsel drew the court’s attention to statements in the 

report that mother continues to receive money from father to help 

pay her rent and costs of living. Although acknowledging that 

mother has reported that father gives money to a pastor who 

then gives it to mother, counsel contended that mother’s reliance 
6

on father for financial support “allows him to have a mechanism 

of power and control over the mother[.]”

Prior to hearing further argument, the court commented as 

follows: “[E]ven if mom was taking some money that was 

delivered from father to the pastor from the church, what is her 

option?” “She is a woman of limited or no means who’s got her 

own place who is trying to work. And if she needs a helping hand 

is there some social service agency that’s going to give it to her?”

“And now we’re questioning who was the provider of that money 

to the pastor that gave it to her?” The court stated, “It’s not an 

issue of power and control. It’s a matter of survival for this 

woman. She doesn’t have a lot of options. And it seems to the 

court, frankly, she’s doing everything she can and is supposed to 

do to try to get her child back.”

After the Department pointed out that the last minute 

information indicated that mother intended to reconcile with 

father in the future, the court responded, “[I]s it your position 

that the only way she is going to ever understand and benefit 

from programs is if she never has any contact with the father of 

her son for the rest of her life?” The court continued, “In your 

mind, because she indicated that she might reunify at some point 

in the future down the road, is that never allowed with a family 

who has been pulled apart by these kinds of allegations to ever 

reunify in the Department’s mind?”

After hearing argument, the court returned the minor to 

the parents’ custody. The court explained that mother “has done 

what she was supposed to do.” The court noted that despite 

“difficult obstacles of language, finances, and the pandemic,” the 

parents demonstrated “that they are worthy of having an 

opportunity to be the parents of this little boy.” As for father, the 
7

court stated he “has made tremendous efforts. And we are going 

to have to make some carve outs to make sure that mother and 

father stay apart.”

As for concerns involving prior violations of court orders, 

the court stated: “People violate orders all the time. I don’t like it.

I’ve been known to speed myself. People violate orders. It’s an 

unfortunate thing and I wish there was more respect for the rule 

of law. But if father is sending mother [sic] to help support her 

through the pastor so she doesn’t end up on [sic] a tent down on 

Hope Street, I have no problem with that. I know some of you do. 

But I don’t. Mistakes have been made with the other children and 

I want to give this family a chance to try to be a family for 

[N.M.].”

After making its ruling and ordering the return of the

minor to the parents’ custody, the court asked the parties to 

develop a visitation schedule. The court also stated it believed a 

restraining order with a visitation carve out should be prepared 

by mother’s counsel. At the Department’s request, the court 

stayed its order until November 19, 2020, and ordered the 

parents to appear at the November 19 hearing. Before concluding 

the hearing, the court informed the parents, “[Y]ou are not to 

have contact with each other. I am issuing a stay-away order. You 

are not to have contact with each other. If I find out that you are 

violating my orders there’s a good chance by the 19th that I will 

change my mind and not release the child to you.” There is no 

indication in the record that a written restraining order was 

prepared or served on the parents.2

2 The November 10, 2020 minute order states that mother and father 

are not to come within 100 yards of each other. The court’s oral ruling 
8

2. The November 16, 2020 Hearing and Writ Petitions

At 8:30 p.m. on November 10, 2020—i.e., after the court 

issued its November 10 order—Becerra went to mother’s home.

In an interim review report filed on November 12, 2020, Becerra

stated that she observed mother standing outside father’s truck 

speaking with him while he was inside of the truck parked 

outside mother’s home. Becerra further reported that the parents 

recognized her. Father drove away and mother was “nervously 

pacing back and forth between the street towards where [father] 

drove to and [mother]’s home.” A couple of minutes later, mother 

went inside her home.

On November 12, 2020, the Department filed a “Request for 

Walk-On” seeking to vacate the court’s prior order because the 

parents had violated the mutual stay-away order issued on

November 10.

On November 16, 2020, the court conducted a hearing on 

the Department’s request. The parents and their respective 

counsel were present. The Department and minor’s counsel asked 

the court to vacate its November 10 order returning the minor to 

the custody of the parents, terminate reunification services, and 

set a section 366.26 hearing, based on the parents’ violation of 

the stay-away order.

Mother’s counsel denied Becerra’s allegations and 

requested that a hearing be set “so we will have an opportunity to 

cross-examine the writer of this report, as well as so mother can 

testify as to her—as to what happened that night, as she does 

deny this.” Counsel further explained, “Right now the court only 

at the hearing, however, did not specify any required distance and 

anticipated the preparation of a written order by mother’s counsel. 
9

has a 385 stating that the social worker saw the mother and the 

father. But without more, without also giving mother an 

opportunity to cross-examine the social worker, it’s our position 

that the court won’t be able to make a finding as to credibility 

without allowing mother to testify and allowing mother to crossexamine the social worker.” Father’s counsel joined mother’s 

request for a contested hearing and stated that father was not at 

mother’s home as was alleged by Becerra.

The court denied the parents’ requests for a contested

hearing and vacated its November 10 home-of-parent order. The 

court also terminated reunification services and scheduled a 

hearing under section 366.26 for March 15, 2021. The court 

explained, “On November 10, 2020, my recollection is that both 

mother and father testified. They had the opportunity to be 

represented by very able counsel, they had interpreters. This 

hearing went on for nearly an hour, and I listened to very 

protracted and thorough arguments by Ms. Menke on behalf of 

mother and Ms. Hernandez on behalf of father. ... And then when 

this court gets information that the very night that the court 

makes the order where they are not to have contact with each 

other, the court receives notification of a violation. Therefore, I 

am changing my order[.]”

The court further advised, “If you want to bring in the 

social worker, you can subpoena he or she for the .26 hearing 

date, but I’m not going to entertain any interim testimony on this 

matter.” After mother’s counsel objected to the denial of her 

request for a contested hearing, the court responded, “Well, you 

can have that chance at the .26 hearing. I gave this case an 

abundance of time last weekend [sic]. So I certainly understand 
10

mother’s objection and her disappointment, as well as father’s. 

But violations of court orders that blatant I have to take action.”

On November 17, 2020, mother filed a notice of intent to 

file a writ petition challenging the November 16, 2020 order; 

father filed his notice of intent on November 20, 2020. The 

parents filed separate petitions on February 25, 2021. On March 

4, 2021, we issued an order to show cause stating our intent to 

decide the matter on the merits, and stayed the section 366.26 

hearing scheduled for March 15, 2021.

DISCUSSION

The parents contend the court violated their right to due 

process by denying them a contested hearing to challenge 

Becerra’s assertion that they violated the court’s stay-away order. 

As noted, the Department takes no position regarding the issues 

raised by the parents, and N.M.’s counsel did not file a response 

to the petitions. The parents’ due process contentions present an 

issue of law which we review de novo. (In re A.B. (2014) 230 

Cal.App.4th 1420, 1434.)

“It is axiomatic that due process guarantees apply to 

dependency proceedings. [Citations.] Parties to such proceedings 

have a due process right to confront and cross-examine witnesses, 

at least at the jurisdictional phase. [Citations.] The essence of 

due process is fairness in the procedure employed; a meaningful 

hearing, one including the right to confront and cross-examine 

witnesses, is an essential aspect of that procedure.” (Ingrid E. v. 

Superior Court (1999) 75 Cal.App.4th 751, 756–757; see also In re 

J.P. (2017) 15 Cal.App.5th 789, 800 [due process requires that 

parents be given the right to cross-examine adversarial 

witnesses, such as the caseworker and persons whose hearsay 

statements are contained in the reports].)
11

Due process “is a flexible concept which depends upon the 

circumstances and a balancing of various factors.” (In re Jeanette 

V. (1998) 68 Cal.App.4th 811, 817; see Sheri T. v. Superior Court

(2008) 166 Cal.App.4th 334, 341.) Even where due process rights 

are triggered, it must always be determined what process is due.

(In re Malinda S. (1990) 51 Cal.3d 368, 383, partially superseded 

by statute as explained in In re I.C. (2018) 4 Cal.5th 869, 884–

885.) We look to “the private interest that will be affected by the 

agency’s action, the risk of an erroneous deprivation of that 

interest, the interest in informing parents of the basis for and 

consequences of the action and in enabling them to present their 

side of the story, and the agency’s interest in expeditious decision

making as affected by the burden caused by an additional 

procedural requirement.” (In re James Q. (2000) 81 Cal.App.4th 

255, 267 (James Q.).) 

Review hearings are a critical aspect of the dependency 

system. (James Q., supra, 81 Cal.App.4th at p. 262.) “[F]indings 

made at those hearings often form the basis of an order at the 

permanent plan hearing terminating parental rights. (§ 366.26, 

subd. (c).) In order to terminate parental rights, the juvenile 

court must expressly make two findings: ‘(1) that there is clear 

and convincing evidence that the minor will be adopted; and (2) 

that there has been a previous determination that reunification 

services shall be terminated.’ [Citation.]” (Ibid.) “If the child is 

not returned to the parents at the 18-month review, the court 

must set the matter for a section 366.26 hearing.” (Cynthia D. v. 

Superior Court (1993) 5 Cal.4th 242, 249.)

With these principles in mind, we are persuaded that due 

process requires the juvenile court to allow the parents to 

challenge Becerra’s contention that they violated the mutual 
12

stay-away order at a contested review hearing. As we explained, 

at the end of the November 10 hearing, the court ordered the 

return of the minor to the custody of the parents. It also ordered 

a mutual stay-away order prohibiting the parents from having 

contact with one another, except in the exercise of permitted 

visitation. The court stayed the order returning N.M. to the 

parents’ custody until November 19. When the Department filed 

its November 12 walk-on request seeking to vacate the court’s 

November 10 order, it relied on new evidence from Becerra. That 

evidence indicated that at 8:30 p.m. on November 10, Becerra

had observed the parents together outside of mother’s home in 

violation of the court’s mutual stay-away order.

At the November 16 hearing on the Department’s walk-on 

request, the Department and minor’s counsel asked the court to 

consider this new evidence and reconsider its November 10 order 

to return the minor to the parents. And the court did exactly 

that— based on the new evidence, the court vacated its 

November 10 order returning the minor to the parents and made

a new and different order terminating the parents’ reunification 

services and setting a section 366.26 hearing. The November 16 

proceeding was for all intents and purposes a further 18-month 

review hearing, and the court should have scheduled a contested

hearing to allow the parents the opportunity to address the new 

evidence submitted by the Department.3

3 Certainly, a juvenile court is vested with broad authority to fashion 

orders concerning the welfare of a dependent child and, subject to due 

process, to modify its prior orders as appropriate. (See M.L. v. Superior 

Court (2019) 37 Cal.App.5th 390, 400.)
13

On this record, we also cannot conclude that the court’s 

reliance on the new evidence was harmless. At the end of the 

November 16 hearing, the court vacated its November 10 order 

returning the minor to the parents’ custody based solely on the 

new evidence. And the court’s finding that the parents violated 

the mutual stay-away order impacted the proceedings in other 

ways—the court denied the parents reunification services and set 

the matter for a section 366.26 hearing to terminate their 

parental rights. 

To be sure, in acknowledging the parents’ requests for an 

opportunity to cross-examine Becerra and challenge her reported 

observations of the parents being seen together, the court 

responded that while it was “not going to entertain any interim 

testimony on this matter,” they could “subpoena [the social 

worker] for the [section 366].26 hearing date.” But the hearing 

under section 366.26 takes place after the juvenile court finds 

that the parents are unfit and the child cannot be returned to 

them. (In re Grace P. (2017) 8 Cal.App.5th 605, 611.) And if “the 

court has found the child likely to be adopted [at the section 

366.26 hearing], the burden shifts to the parents to show 

exceptional circumstances exist such that termination [of 

parental rights] would be detrimental to the child.” (Ibid.) Stated 

another way, the legal issues to be decided by the court at the 

section 366.26 hearing are whether the minor is adoptable and if 

there are any exceptions to the termination of parental rights, 

not whether the minor should be returned to the parents’ 

custody. As such, evidence regarding the observations of the 

social worker of the parents being together on November 10 

would be irrelevant. We therefore agree with the parents that the 
14

ability to cross-examine the social worker at the section 366.26 

hearing is an inadequate remedy.

Accordingly, we reverse the court’s November 16, 2020 

order. On remand, the court shall conduct a contested hearing to 

allow the parents to challenge the Department’s new evidence. At 

this hearing, the parties can address the facts as they existed at 

the time of the November 16, 2020 proceeding, as well as any 

subsequent developments. (See In re Ryan K. (2012) 207 

Cal.App.4th 591, 597 [on remand, juvenile court may consider 

matters that transpired while the appeal was pending].)
15

DISPOSITION

The petitions for extraordinary relief are granted. A 

peremptory writ of mandate shall issue directing the juvenile 

court to reverse its November 16, 2020 order. On remand, the 

court shall conduct a contested hearing consistent with the views 

expressed in this opinion. This opinion is final immediately upon 

filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.