Filed 12/29/20 In re Amira A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re AMIRA A. e t al. , Person s Coming Under the Juvenile Court Law. B301682 (Los Angeles County Super. Ct. No. DK10281A

- B)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

H ANIA A.

,

Defendant and Appellant;

M ARIA T.

,
Respondent.

APPEAL from order s of the Superior Court of Los Angeles County. Steven E. Ipson, Ju dge Pro Tempore . Affirmed.2 Daniel G. Rooney , under appointment by the Court of Appeal, for Defendant and Appellant

.

Mary C. Wickham, County Counsel

, and David Michael
Miller

, Deputy Co unty Counsel, for Plaintiff and Respondent

.

Liana Serobian , under appointment by the Court of Appeal,
for Respondent

.

_________________________

Hania A. (father) appeals an order grant ing full legal and physical custody of N oah A. (Noah) to Maria T. (mother) , allowing
mother to move A mira A. (Amira) 1 and Noah ( collectively minors)
to Minnesota

, 2 and restricting father’s visitation . He contends
that the order must be reversed because he was denied procedural due process. Because he has not demonstrat ed that he preserved the issue for review, or that he suffered prejudice,
we affirm.

1 Amira is sometimes referred to as Amirah in the appellate record.

2 The juvenile court did not expressly rule that mother could

move m inors to Minnesota. At most, its orders gave mother implied permission. An implied order in a juvenile dependency case can be reviewed on appeal. ( In re Kristi n W. (1990) 222 Cal.App.3d 234, 246.)3 FACTS Background The Department of Children and Family Services (Department) filed a petition pursuant to Welfare and
Institutions Code section 300, subdivisions (a), (b ) and (j) 3 on behalf of minor s

. After it was amended by interlineation and certain counts were dismissed without prejudice, it alleged that
minor s were exposed to a risk of harm due to father’s mental
state, his use of inappropriate physical discipline, a nd his history
of domestic violence with mother. The petition was sustained on December 16, 2015. The Contested Review Hearing The juvenile court held a contested section 364 review hearing review on January 6, 2017, April 14, 2017, April 26, 2017, Ma y 4, 2017, June 1, 2017 , January 24, 2018, June 8, 2018, August 17, 2018, August 24, 2018, and October 19, 2018. Multiple witnesses testified. The Department recommended that the juvenile court terminate jurisdiction and grant mother and father joint leg al and physical custody of minors. The Department ’s attorney noted that the case involved allegations of father’s inappropriate discipline of Amira , domestic violence, father’s 2015 conviction for spousal injury, and father’s diagnosis of post traumati c st ress disorder and obsessive

- compulsive disorder. When t he juvenile court asked if there was a presumption against joint custody in cases involving domestic violence , the Department ’s attorney stated, “There is, your honor, but the Department belie ves that

. . . based on all the testimony by the therapist and other

3 All further statutory references are to the Welfare a nd Institutions Code unless otherwise indicated.4

witnesses, that .

. . father has been rehabilitated.” Per the Department’s attorney, the Department did not see the “case as a child safety case but rather a family law dispute between the

pare nts.” She stated, “[The Department] believes that there is no child safety concern here. And that the parents need to resolve their differences through Family Court.” Father’s attorney joined the Department’s argument and asked the juvenile court to fol low the recommendation of joint legal and physical custody. Mother’s attorney argued that father failed to complete the case plan , there was an ongoing risk of harm, and he should not be given shared custody of the minors

. Minors’ attorney argued that th e juvenile court should grant the parents joint legal and physical custody of Noah and, as to Amira

, grant joint legal custody but sole physical custody to mother.
T he juvenile court granted mother sole legal and physical custody of Amira , and grant ed fat her monitored visits. With
respect to Noah , the juvenile court awarded mother and father joint legal and physical custody with the proviso that Noah ’s primary residence be with mother. 4 The minute order stated that mediation was on January 15, 2019, and a Family Law Order was due on January 18, 2019. It stated, “Termination of jurisdiction is stayed pending the receipt of the Juvenile Custody Order[.]” The Continuing and Uncontested Review Hearing s ; Intervening Incidents On June 7, 2019, the parties a ppeared for the ongoing review hearing. The juvenile court entered the following orders:

4 Father appealed in case No. B294507. That appeal was later dismissed as moot.5

“Father is to have monitored visits [once] per week

. . . at a [Department] office

. . . . The [juvenile court] modifies its prior
orders as to

. . . Noah to reflect [ that mother]

. . . [shall] have sole legal and sole physical custody and [f]ather [shall] have monitored visits as reflected above, based upon [f]ather’s] conduct in [c]ourt] this date. All prior orders remain in full force and
effect as to .

. . Amira. ” 5 Mother and minors traveled to Minnesota on July 8, 2019. Several weeks later, mother’s attorney submitted a walk

- on request seeking the juvenile court’s approval for mother to move
to Minnesota with minors. At an August 16 , 2019 , hearing, the juvenil e court informed t he parties that it was inclined to allow
mother to move. Father’s attorney wanted to argue, and the juvenile court stated, “It is too late to hear the matter now.” The matter was continued to August 23, 2019, and then to September 3, 20 19. In the meantime, f ather filed a section 388 petition to change the June 7, 2019, order modifying custody and giving mother sole legal and physical custody of Noah. On September 3, 2019, t he juvenile court denied the section

388 petition because it di d not state new evidence or a change of
circumstances. The juvenile court indicated that it was inclined

5 The juvenile court later stated: “My recollection of that incident does show that the father certainly acted in a way tha t was inappropriate. My recollection is he somewhat jerked up out of his seat. Began yelling, lunged in the direction of the mother and her counsel, and was waving and pointing his fi nger. That’s my recollection. [¶] I don’t recall the specific words, but the voice was an elevated voice that was hostile towards that part of the table, those persons at that part of the table. I was alarmed by the father’s behavior.”6

to allow mother and minors to remain in Minnesota pending a further order. On September 19, 2019, the parties convened again for the ongoing review h earing. The juvenile court vacated all prior
orders. The Department recommended that the juvenile court grant sole legal and physical custody of both minors to mother. Its attorney explained the basis of the recommendation, stating, “[F]ather has not be nefited from the programs that he was ordered to do, such as counseling and anger management, as evidenced by the in

- court conduct that led the [juvenile court] to vacate findings.” The juvenile court stated that its indicated ruling was to grant sole leg al and physical custody to mother and monitored visits to father as agreed by mother and father. 6 No witnesses were called to testify. Father’s attorney argued that father’s behavior on June 7, 2019, was a one

- time occurrence and stated, “So we believe i t would be inappropriate at this time to make the orders that have been made[.]” He asked the juvenile court to set the matter for a hearing to determine if father’s outburst in court was an
aberration. Also, f ather’s attorney presented argument, inter al ia, regarding visitation and the impact of mother moving the minors

to Minnesota. He cited In re Marriage of LaMusga (2004) 32

6 “Under section 362.4, the juvenile court may, when it terminates jurisdiction over a case, issue an order ‘determining the custody of, or visitation with, the child.’ The juvenile court’s section 362.4 order may be enforced or modified by the famil y court. [Citations.] Custody and visitation orders issued under section 362.4 are somet imes referred to as ‘family law’ orders or ‘exit’ orders.” ( In re Ryan K. (2012 ) 207 Cal.App.4th 591, 594, fn. 5.)7

Cal.4th 1072 ( LaMusga ) as requiring a court to consider various factors before allowing a custodial parent to move a child away.
He requested that mother’s move

- away issue go to the Family
Law Court for a decision. If the juvenile court was not so inclined, father’s attorney requested a continuance of a week or two to consider the matter in light of LaMusga

. The juvenile

court t erminated jurisdiction and granted mother sole legal and physical custody of minors. It further stated, “I don’t believe

. . . father has benefited from programs. Monitored visits to

. . . father with any agreed

- upon monitor. If no monitor is agreed

upo n, a paid professional monitor paid for by

. . . father. [¶] The [juvenile] court will allow phone calls and Skype calls, a
minimum of four times a week.” It ordered the calls t o take place

at 8 :00 p.m. in the time zone i n which minors resided.
Father appealed on October 2 1, 2019 , from the denial of his
section 388 petition , the order terminating jurisdiction, and the custody orders

. The date s of the orders were December 18, 2018,
Janu ary 1 5, 2019, January 18, 2019, March 26, 2019, March 28, 2019, Apr il 12, 2019, May 3, 2019, June 7, 2019, June 20, 2019, August 16, 2019, August 23, 2019, September 3, 2019, September 19, 2019, and September 20, 2019.8 DISCUSSION Father contends that the juvenile court denied his right to procedural due process by modif ying the custody order

, restricting his visitation with minors, and approving mother’s
move without holding contested hearing s

. We presume that he
contends that due process entitled him to call and cross

- examine witnesses before the juvenile court ruled.
I. D ue Process ; Standard of Review

. Under state and federal law, d ue process entitles a party to notice and an opportunity to be heard. The opportunity to be heard must be at a meaningful time and in a meaningful manner. ( Today’s Fresh Start, Inc. v. L os Angeles County Office of
Education (2 013) 57 Cal.4th 197 , 212.) Due process requirements vary, “as not every context to which the right to procedural due process applies requires the same procedure

. . . . Consequently, due process is a flexible

conce pt, as the characteristic of elasticity is required

. . . to tailor the process to the particular need. [Citations.] Thus, not every situation requires a formal hearing accompanied by the full rights of confrontation and cross

- examination. [Citation.]” ( Ryan v. California Interscholastic Federation

- San Diego Section (2001) 94 Cal.App. 4th 1048 , 1072.) “It is axiomatic that due process guarantees apply to dependency proceedings. [Citation s .] Parties to such proceedings have a due process right to conf ront and cross

- examine witnesses, at least at the jurisdictional phase. [Citation.]” ( Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 75 6

– 757 .) The denial of procedural due process is a legal question subject to de novo review. ( Severson & Werson , P.C. v. Sepehry

Fard (2019) 37 Cal.App.5th 938, 944.) If there is a violation of9

due process, reversal is not required if it was harmless beyond a reasonable doubt. ( In re Enrique G. (2006) 140 Cal.App.4th 676,

686

– 687.)
I I. Modified Custody Order

. Father did not preserve his objection to the modified custody order because he did not raise it below. “A prerequisite to raising an issue for appellate review is an objection in the trial court

. . . . The rule also requires the objection be made on the same grounds urged on appeal.” ( People
v. Derello (1989) 211 Cal.App.3d 414, 428

. ) In People v. Partida (2005) 37 Cal.4th 428 , 435 , the court “held that constitutional arguments raised for the first time on appeal are not forfeited if they do not invoke reasons different from those the trial court was asked to apply, but merely assert that the trial court’s act or omission, to the extent erroneous for the reasons actually presented to that court , ‘had the additional legal consequence of violating’ the Con stitution. [Citation.]” ( People v. Farley (2009) 46 Cal.4th 1053, 1095.) In his reply brief, father cit es In re S.B. (2004) 32 Cal.4th 1287, 1293 & fn. 2 ( S.B. ) to support a theory that he preserved
his constitutional objection by consistently raising th e issues of visitation, custody and minors’ residency , and by opposing the juvenile court’s rulings on those matters

. He essentially contends that if he objected to a ruling on one specific ground, that operates as a placeholder so that he can raise any o ther conceivable ground on appeal. On page 1293, S.B. only states the accepted and unremarkable proposition that the forfeiture rule applies in dependency matters. ( Id . at p. 1293.) Footnote 2 provides: “Although the loss of the right to challenge a ru ling on appeal because of the failure to object in the trial court is often10

referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfe its that claim. In contrast, a waiver is the ‘“‘intentional relinquishment or abandonment of a known right.”’ [Citation s .]” ( Id . at p. 1293,
fn. 2.) Nothing in S.B. establish es that a due process objection is preserved when a party objects to or otherw ise opposes rulings on
other grounds . We therefore conclude that S.B. does not aid father’s appeal.
I I I. Visitation. Insofar as father suggests that the September 19, 2019,
order restricted his visitation without a contested hearing, he has
not demonst rated that he objected at the September 19, 2019 hearing to a violation of his procedural due process rights, i.e., a denial of the opportunity to call or cross

- examine witnesses

. Nor did he demonstrate that he sought a hearing to introduce new
evidence. Regardless, he has not attempted to demonstrate that he suffered prejudice. Finally, at the September 19, 2019, hearing, father’s attorney had ample opportunity to argue
visitation issues

. I V . Approval of Mother’s Move. Father suggests that he was deni ed procedural due process because he was not given a separate hearing to p resent new
evidence regarding mother’s move

. He did not raise a due process objection below , so the issue is forfeited. Nor has he attempted to show prejudice. Also, at the Septem ber 19, 2019, hearing, father did not inform the juvenile court that he had new
evidence to introduce.11

V. Other Issues

. To the degree father raises issues other than procedural due process, we have not considered them. In his introduction,
he states on ly that he was denied due process without contested hearings. In his argument, he has just two headings, each of which pertains to due process. Each point should appear under a separate heading or it need not be considered by the reviewing

court. (Cal. Rules of Court, rule 8.204(a)(1)(B); Heavenly Valley v. El Dorado County Bd. of Equalization ( 2000) 84 Cal.App. 4th 1323, 13 45, fn. 17 .)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

__________________________, J. ASHMANN

- GERST

We concur:

__________________________, P. J.

LUI

_________________________, J.

CHAVEZ