Monday, July 6, 2020
Judicial Officer Had No Duty to Hear Argument Against Granting Father Overnight Visits—C.A.
Grandmother Wanted Attorney to Point to ‘Red Flags’ Against Granting Increased Visitation; Hoffstadt Says There Was No Right to Be Heard
By a MetNews Staff Writer
A Los Angeles Superior Court commissioner had no obligation to hear argument from the attorney for a woman with temporary custody of her granddaughter as to why the child’s father, from whom custody had been taken, should not be given unmonitored over-night visitation rights, Div. Two of the Court of Appeal for this district held yesterday.
The unpublished opinion by Justice Brian M. Hoffstadt upholds an Oct. 11, 2019 order by Commissioner Emma Castro. Affirmance comes in the case of In re S.W., B302160.
Custody of the child, S.W., born in May 2011, was taken from Sironn W., based on his drug addiction and a violent confrontation he had with law enforcement officers in the child’s presence. Since 2013, he has had monitored day-time visitation rights.
The maternal grandmother, Thelma B., insisted on appeal that Castro erred in declining to hear argument from her lawyer as to “the many red flags” in the record, giving rise to her doubts as to the wisdom of overnight visits.
Hoffstadt said that when a court receives a petition for modification of a dependency order under Welfare and Institutions Code §388, it can grant it if there’s no opposition, summarily deny it on various bases, grant a hearing as to whether to hold an evidentiary hearing, or go ahead and hold such a hearing. He recited that the proceeding before Castro started out as one aimed at determining whether to hold an evidentiary hearing, but developed into a hearing on the merits, though not of an evidentiary nature.
Evidence was not needed, he said, because the material facts were not in dispute. At the hearing, the jurist declared, Castro was not obliged to hear from Thelma B’s lawyer.
Hoffstadt noted that “it is well settled that juvenile dependency proceedings are civil in nature,” and oral argument in a civil proceeding is a privilege, he said, not a right.
Outcome Not Affected
“Second, even if we assume that the juvenile court erred in denying Thelma’s attorney the right to explain the particulars of her objection, this denial does not warrant reversal because we do not find it ‘reasonably probable’ that the juvenile court would have reached a contrary decision had counsel been permitted to argue….To begin, by the time Thelma’s attorney asked to argue, the court had already come to its conclusion about allowing overnight visits and explained its cogent reasons for doing so—namely, that the court’s earlier order allowing for unmonitored day visits was going well and that unmonitored overnight visits were the next logical ‘phase.’ The likelihood that the court would, at this point, change its mind seems slim.”
“Further, Thelma’s argument would—by her own admission—be a summary of the juvenile court record from Thelma’s perspective. Summarizing the record would not lead to a different result because juvenile courts are presumed to be familiar with the record…, and the juvenile court here went a step further and summarized much of the record.”
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