In re Ivan O.

Filed 4/12/07 In re Ivan O. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Robert L. Stevenson, Temporary Judge. (Pursuant to Cal. Const., art VI, 21.) Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Objector and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Owen L. Gallagher, Principal Deputy County Counsel, for Petitioner and Respondent.

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This appeal arises from a dependency proceeding concerning appellant Daisy L.'s son, Ivan O. The dependency terminated with a family law order under Welfare and Institutions Code[1]section 362.4 which awarded joint legal custody to mother and father, and sole physical custody to father. That judgment also included an order on mother's visits. On appeal, mother contends that the visits portion of the order is in error, because it does not comport with the order announced by the trial court. We affirm, as we explain:

The section 300 petition was filed in August, 2005. Ivan was eleven months old. His parents were not married, but had agreed to a parenting plan which called for joint legal and physical custody of Ivan, and provided that until he was old enough for school, he would live alternately with mother, who lived in Fresno, and father, who lived in Montebello, changing locations every two weeks. However, in August, 2005, while in his mother's custody, Ivan suffered a skull fracture. Doctors believed that that injury, and old rib fractures which were revealed later, were more than likely non-accidental.

The section 300 petition was sustained in December, after mother submitted on factual allegations concerning Ivan's injuries. Ivan was placed with his father, and the court ordered visits for mother "as frequently as can be arranged," given that she lived in Fresno. In practice, this meant one four-hour visit a week. Mother's interaction with Ivan was appropriate and Ivan responded well to her. Father was cooperative, changing the visits schedule to accommodate a Mommy and Me class mother wished to take with Ivan, and always making Ivan available for visits.

DCFS's recommendation from the outset was termination of jurisdiction with a family law order giving custody to father. At a June 8 hearing, father supported the recommendation. Ivan's counsel argued in favor of termination of jurisdiction with sole physical custody to father, and that mother "continue to have frequent, ongoing contact" with Ivan. Counsel for mother argued for further reunification services, then made an alternative argument, contending that if the court was inclined to terminate jurisdiction, Ivan's relationship with his mother should be preserved.

The court ruled "I'm going to order a family law order to be joint legal, sole physical custody. Mother is to have monitored visitation, and I expect the father and the mother to be able to arrange the time, place and frequency of the visits. I want mother to have frequent visits to maintain her relationship with Ivan." The court then asked "Who would like to prepare the family law order?" Father's counsel volunteered.

The judgment, prepared on the mandatory Judicial Council form (Cal. Rules of Court, rule 5.700), was signed, filed, and served by the court on June 15. It reads "Mother's visits shall be monitored by a monitor designated by father. If mother chooses to use a professional monitor, the professional monitor must be appropriately licensed or employed by an appropriately licensed agency and approved by father. Visits shall be at least 2 hours a week on Saturdays, consistent with mother's ability to travel to Montebello, CA and consistent with the best interests of the minor. The place and time of each visit should be arranged and confirmed no less than twenty-four (24) hours in advance of each visit."

Mother's sole argument on appeal is that "The juvenile court's exit orders, filed a week after the hearing, do not comport with its pronounced orders at the hearing . . . and appellant was thereby prejudiced." She contends that she cannot apply to the family law court for a change in the order without showing a change in circumstances ( 302, subd. (d)), and asks that we reverse the order and remand to the dependency court for modification of the visits order and to give her an opportunity to contest that order.

In essence, Mother asks us to assume that the court did not intend the order it made. We may not do so. "An 'order' is defined by statute as the 'direction of a court or judge, made or entered in writing,. . . .' (Code Civ. Proc., 1003, italics added.)" (In re Marcus (2006) 138 Cal.App.4th 1009, 1016.) Thus, the court's order is the order which is written, signed, and filed. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756, fn.1.) "'An oral . . . opinion by a trial judge, discussing and purporting to decide the issues, . . . is merely an informal statement of his views . . . . [I]t is not itself the decision of the court or a judgment. [Citations.]' (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, 9, p. 547.)" (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 77-78.)

Mother has not identified any legal error or advanced any legal theory cognizable on appeal. She does not contend, for instance, that the court lacked jurisdiction to make the order, or that the substance of the order amounted to an abuse of discretion. Her reference to an opportunity to contest the order suggests a due process argument, but she does not explicitly make the argument, and we see no due process violation. The court heard argument on the order, and made a decision.

In the absence of error, we affirm.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1]All further statutory references are to that code.