Opinion
A157203
01-17-2020
In re BROOKE F., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD03036101)
M.B. (Father) appeals from the juvenile court's jurisdictional and dispositional orders in this dependency proceeding regarding his daughter Brooke F. (Minor). We modify the juvenile court's orders in two respects, and otherwise affirm.
BACKGROUND
In October 2018, the Alameda County Social Services Agency (Agency) filed a juvenile dependency petition alleging that Minor, born in September 2018, was within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b)(1) and (g). As to subdivision (b)(1), the Petition alleged among other things that Minor and her mother, T.F. (Mother), had both tested positive for methadone after Minor's birth. Also, Mother had a history of substance abuse and homelessness, and her first child (born in May 2017) had been removed from her custody and placed with Father (who was the father of Mother's first child and eventually determined to be Minor's father).
All undesignated statutory references are to the Welfare and Institutions Code.
The section 300, subdivision (g) allegation stated that Minor's father's identity was unknown. That allegation was later omitted.
A November 2018 jurisdiction/disposition report stated that Mother was living in a truck and/or shed on Father's parents' property, where Father lived as well. A December 2018 addendum report stated that testing had confirmed Father's paternity. A January 2019 addendum report stated that Minor had been placed with a maternal aunt and uncle. Also, Father told the Agency he was no longer in a relationship with Mother.
The Agency's November 2018, December 2018, and January 2019 reports also contained information about alleged domestic violence and other conduct described by the maternal grandparents, the maternal aunt and uncle, and the Fremont Police Department (in police reports). In March 2019, Father's counsel filed a section 355 motion objecting to those matters as hearsay evidence. Accordingly, that hearsay evidence would "not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based." (§ 355, subd. (c)(1).) Although section 355, subdivision (c)(1), did not require the exclusion of the objected-to matters (see In re Lucero L. (2000) 22 Cal.4th 1227, 1243), we need not and do not detail the alleged hearsay because the juvenile court's jurisdictional finding may be affirmed based on matters in later reports detailed below (see Part I.C., post). Father points to nowhere in the record where an objection under section 355 was asserted as to any alleged hearsay in the later reports.
Section 355, subdivision (b) provides that "A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d)." As relevant herein, section 355, subdivision (c)(1) provides that "If a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based," unless an exception is shown to apply. The Agency does not argue it showed any exceptions applied.
On March 15, 2019, the Agency filed a second amended petition (Petition) that contains the allegations at issue on appeal. The allegations, all under section 300, subdivision (b)(1), are detailed as appropriate in the discussion section below. In summary, the Petition alleged substantial risk to Minor due to Mother's drug use; Mother's homelessness; Mother's violations of a restraining order, facilitated by Father; Mother and Father's history of domestic violence; and Father's anger management problem.
A March 2019 addendum reported Mother's description of an incident in which Father attacked her when she was pregnant with Minor. She said Father " 'choke slammed' " her and "kneed her in the stomach," stating " 'I hope you and the baby both die.' " Mother showed the Agency worker scars and marks on her cheeks that she stated were from Father grabbing and choking her. She said Father had made credible threats to kill her and had threatened to kill her sister and mother. Mother also described incidents of domestic violence that occurred in front of Minor's sibling and half-sibling. She also reported two incidents in which Father tried to fight others, one was a friend she was staying with and the second was someone Father threatened with a knife in the presence of Mother and their first child. The March addendum also described three additional 2018 and 2019 incidents in police reports involving conflict between Mother and Father or disturbances involving Mother at Father's home. One of the incidents, from January 7, 2019, related to Mother's violation of a restraining order obtained by Father's family "preventing her from coming within 100 yard[s] of [Father's family's] home." It is not clear when Father's family obtained the restraining order.
Mother said the incident was captured in an audio recording, but the juvenile court excluded a transcript of the recording and the recording itself was not submitted into evidence.
Mother told the Agency worker she had nowhere to stay and she had slept at Father's home the previous night. She was interested in going into a domestic violence shelter. The March addendum also described information the maternal grandmother provided the Agency in February. Among other things, the grandmother said a friend of Mother's told her he knew of at least two instances since Minor was born that Father had " 'beat up' " Mother. Finally, the addendum stated that Father had failed to attend a Child and Family Team meeting "scheduled to develop case plan goals for him."
An April 2019 addendum stated that a section 300 petition had been sustained in September 2017 regarding Minor's older sibling. The petition was based, among other things, on an allegation that the sibling is "periodically exposed to violent confrontations between the parents, [Father] and [Mother], that endangers her physical safety." The addendum also stated that Mother continued to show up at Father's home and may still be living in a shed on the property. Father was arrested on March 19, 2019, for domestic violence and attempted rape of Mother. Mother told the Agency that she called the police after Father choked her. The police report stated that Mother had gone to Father's property to get some of her belongings and they started to argue. During the argument, Father said something like, "we're going to have sex, I don't care what you want," and tried to pull down Mother's pants. He then threw her on the bed and started "choking [her] out" with both of his hands. Mother was also hit on the right ear during the struggle. An officer observed redness on Mother's neck and a drop of fresh dried blood in her ear that appeared to be caused by her earring being forced against her ear. Father denied any recent contact with Mother.
Father testified during hearings in April 2019. He was a mechanic and he cared for Minor's older sibling. The sibling had previously been a dependent, but Father obtained custody following participation in reunification services. Father also shared custody of two older daughters who were not Mother's children. He denied being in a relationship with Mother, but said they had been in a relationship before the March 19 incident. Father said Mother acted "paranoid" and "there was really no getting through to her." He denied ever physically abusing her, including while she was pregnant with Minor. He denied Mother's allegations in the March incident, and noted the charges had been dropped. He said that, before the March incident, Mother slept in the shed on his property most nights. He intended to keep Mother away from Minor if he received custody. He also noted she had a restraining order against him. Father denied he had an anger management problem, but he said he had learned a lot from the three classes on the topic he had attended.
In May 2019, the juvenile court found true the allegations in the Petition; declared Minor a dependent of the court; removed Minor from her parents' care; found Father's progress toward alleviating the cause of removal was "none" and Mother's was "minimal;" and ordered the provision of reunification services and visitation "as frequently as possible consistent with [Minor's] well-being." The court observed it believed "the domestic violence [that] has been present in the case is ongoing and of such a depth and has such a history that it poses a substantial risk of danger to this child. It is compounded by the fact that both parents I don't believe have been truthful in everything that they've shared."
Father points out that counsel for the Agency stated in his closing argument that the Agency "would strike [allegation] B-6 subdivision (c) from [the Petition] and the Agency will file a third-amended petition to reflect that." That allegation related to the "audio recording" of Father's attack on Mother when she was pregnant with Minor. No third amended petition was filed.
Father points out that the juvenile court stated in its oral ruling that both parents had "shown minimal progress availing themselves to services provided to address the child's out-of-home placement." We will direct the juvenile court to correct the written order to be consistent with the court's oral pronouncement. (See In re Nia A. (2016) 246 Cal.App.4th 1241, 1247, fn. 1 [" 'When there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls.' "].)
This appeal followed.
DISCUSSION
I. Substantial Evidence Supports the Juvenile Court's Jurisdictional Finding
Father contends the juvenile court's jurisdictional finding under section 300, subdivision (b) is not supported by substantial evidence. The claim fails.
A. Standard of Review
"When an appellate court reviews the jurisdictional . . . findings of the juvenile court, it looks to see if substantial evidence, whether contradicted or uncontradicted, supports the findings. [Citations.] The appellate court must review the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. [Citation.] Substantial evidence 'means evidence that is "reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." ' " (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.) Under the substantial evidence rule, "[w]e have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) " 'The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.' " (In re Travis C. (2017) 13 Cal.App.5th 1219, 1225.)
A juvenile court may determine a child is subject to the court's jurisdiction if it finds by a preponderance of the evidence that "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness," as a result of a parent's failure or inability to adequately supervise or protect the child, a parent's failure to provide the child with adequate food, clothing, shelter, or medical treatment, or a parent's inability to care for the child due to the parent's mental illness, developmental disability, or substance abuse. (§ 300, subd. (b)(1).) "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. [Citations.] The court may consider past events in deciding whether a child presently needs the court's protection." (In re N.M. (2011) 197 Cal.App.4th 159, 165.)
B. Scope of Review
"As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings. [Citation.] We nonetheless retain discretion to consider the merits of a parent's appeal [citation], and often do so when the finding '(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) "could have other consequences for [the appellant], beyond jurisdiction" [citation].' " (In re M.W. (2015) 238 Cal.App.4th 1444, 1452.)
In the present case, Father requests that this court exercise its discretion and consider his challenges to all of the different jurisdictional allegations under section 300, subdivision (b). We will exercise our discretion to consider the propriety of assumption of jurisdiction based on Father's conduct, even though the unchallenged jurisdictional allegations based on Mother's drug use and other conduct are sufficient to support the juvenile court's jurisdictional order. (In re A.R. (2014) 228 Cal.App.4th 1146, 1150 ["Because the juvenile court assumes jurisdiction of the child, not the parents, jurisdiction may exist based on the conduct of one parent only. As a result, we need not consider jurisdictional findings based on the other parent's conduct."].) It is proper to consider whether jurisdiction was properly based in part on Father's conduct because such a finding may negatively impact him in the current or future dependency proceedings. (In re Drake M. (2012) 211 Cal.App.4th 754, 763 ["the outcome of this appeal is the difference between father's being an 'offending' parent versus a 'non-offending' parent"].)
On the other hand, we decline to consider all of Father's challenges to the sufficiency of the evidence. The Petition alleges three categories of conduct involving Father in support of the section 300, subdivision (b)(1) failure to protect jurisdictional allegation. First, the Petition alleges in support of allegation b-4 that Father "facilitate[d]" Mother's violations of a restraining order prohibiting Mother from going to Father's home. Second, the Petition's allegation b-5 is that the parents "have a relationship characterized as intimate partner violence [that] places [M]inor at substantial risk of abuse and neglect," with more specific supporting allegations (designated as "a" through "c"). Third and finally, the Petition's allegation b-6 is that Father "has anger management needs [that have] placed others at risk of harm," with more specific supporting allegations (designated as "a" through "c"). As explained below, the record contains substantial evidence to support jurisdiction based on the allegations of domestic violence—allegations b-5(a), b-5(b), and b-5(c) in the Petition. We need not and do not consider whether assumption of jurisdiction was also proper under allegations b-4 and b-6, because Father does not identify any consequences that might flow from those additional allegations involving him, given that the domestic violence allegations were the most serious allegations against Father. (Cf. In re M.W., supra, 238 Cal.App.4th at p. 1452 [reviewing failure to protect from sexual abuse allegation that "carries a particular stigma"].) Neither does Father identify any dispositional orders that flow from the b-4 and b-6 jurisdictional findings. Accordingly, we address only the b-5 domestic violence allegations below.
C. Substantial Evidence Supports Jurisdiction
Allegation b-5 in the Petition is that "The parents . . . have a relationship characterized as intimate partner violence [that] places [M]inor at substantial risk of abuse and neglect in that: [¶] a) The parents have a history of arrests and/or law enforcement involvement for domestic violence. [¶] b) [M]other has sustained physical injuries by [F]ather and reports that when she was pregnant with [Minor], [F]ather 'choke slammed[' her], kneed her in the stomach[,] and told her 'I hope you and the baby both die.' [M]other further reports that the scars/marks on her face are the result of [F]ather 'grabbing her face, choking her[,] and holding her down.' [¶] c) [F]ather threatens to kill [M]other and [M]other believes him. [M]other is fearful to move to a shelter in Alameda County in fear that [F]ather will locate her." On appeal, Father does not dispute the sufficiency of the evidence of the truth of the factual assertions in the b-5 allegations. Instead, Father disputes that the incidents as described support the juvenile court's jurisdictional finding under section 300, subdivision (b).
Father does assert that the juvenile court's findings must be reversed because, in finding Father's testimony not credible, the court said, "Your testimony was not particularly credible, [Father], especially when laid against a bunch of other information that has been corroborated by things such as audiotape, photographs, things of that nature." On appeal, Father points out that neither the audiotape nor the transcript of the audiotape were admitted into evidence. But the court's statement makes it clear it found Father not credible based on his testimony alone, and the audiotape was only one of the forms of corroboration the court mentioned. Furthermore, regardless of what was admitted into evidence, Mother told an Agency worker that the audio recording was of abuse by Father while she was pregnant with Minor.
First, Father disputes the evidence showed a risk of harm to Minor at the time the findings were made, because the allegations involved past incidents and because there are restraining orders separating Mother and Father. However, the record amply demonstrates that restraining orders have not been effective at separating Mother and Father, and there is evidence of a long history of domestic violence by Father. (See In re E.B. (2010) 184 Cal.App.4th 568, 576 [" '[P]ast violent behavior in a relationship is "the best predictor of future violence." ' "]; In re N.M., supra, 197 Cal.App.4th at p. 165 ["The court may consider past events in deciding whether a child presently needs the court's protection."].)
Father relies on In re Daisy H. (2011) 192 Cal.App.4th 713, but that case is distinguishable. There, the court concluded "[t]he evidence was insufficient to support a finding that past or present domestic violence between the parents placed the children at a current substantial risk of physical harm" because "[t]he physical violence between the parents happened at least two, and probably seven, years before the [filing of] the petition. There was no evidence that any of the children were physically exposed to the past violence between their parents and no evidence of any ongoing violence between the parents who are now separated." (Id. at p. 717; see also In re M.W., supra, 238 Cal.App.4th at p. 1454 [insufficient evidence to support jurisdiction where "the record contains evidence that a single incident of domestic violence occurred more than seven years before the hearing"].) In contrast, in the present case there is evidence of a long history of domestic violence, ongoing incidents despite the parents not living together, and direct exposure of Minor to violence in the womb.
Second, Father argues there was no evidence of substantial risk of harm to Minor due to the alleged incidents. The argument is frivolous as to allegation b-5(b), because by choking Mother and kneeing Mother in the stomach while she was pregnant with Minor, Father exposed Minor to substantial risk of harm. (See In re Troy D. (1989) 215 Cal.App.3d 889, 900 ["Although we recognize that the cases just cited deal with prior conduct with a living child, rather than a fetus, we believe the same reasoning is applicable. Mother's conduct prior to Troy's birth was sufficient to establish the court's jurisdiction."].) As to the b-5(a) and b-5(c) allegations, although those do not involve direct threatened harm to Minor, the juvenile court could reasonably infer that violent acts towards Mother expose Minor to a substantial risk of harm. Mother described to an Agency worker an incident when Father choked her while Minor's sister was present and another instance when he held her up against a wall by her throat in front of one of Father's older daughters. The Agency received information in February 2019 that a friend of Mother's said he knew of at least two occasions since Minor was born that Father had "beat up" Mother. Mother made a police report of another choking incident on March 19, 2019, less than two months before the jurisdictional/dispositional orders at issue on appeal. The circumstance that Mother and Father are not living together is not determinative in light of the evidence that Mother repeatedly stayed at a shed on Father's property, despite a restraining order prohibiting her from doing so.
Finally, Father suggests the evidence was insufficient as to Minor because the Agency did not file a new dependency petition as to Minor's sister, who lives with Father. But Father cites no authority that an agency's determination to proceed differently as to a sibling undermines a jurisdictional finding otherwise supported by the evidence. We review the sufficiency of the evidence supporting the jurisdictional finding as to Minor; the Agency's failure to seek jurisdiction over Minor's sister does not logically affect that analysis, particularly because we can only speculate why the Agency proceeded differently as to Minor's sister. Furthermore, the evidence that Father attacked Mother while she was pregnant with Minor is evidence that Minor and her sister may not be similarly situated.
Father has not shown the juvenile court's jurisdictional finding is not supported by substantial evidence.
Father requests that the true finding as to the b-6(c) allegation be reversed because counsel for the Agency withdrew that allegation in his closing argument. On appeal, the Agency does not deny the allegation was withdrawn. The juvenile court did not expressly reference the allegation, so it is unclear whether the court intended to make a true finding as to that allegation. We will modify the court's order to clarify that allegation was withdrawn.
II. Substantial Evidence Supports Removal
Father also contends the juvenile court's removal finding is not supported by substantial evidence. The claim also fails.
"A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.] [¶] Before the court issues a removal order, it must find the child's welfare requires removal because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and there are no reasonable alternatives to protect the child. [Citation.] There must be clear and convincing evidence that removal is the only way to protect the child. [Citation.] [¶] Whether the conditions in the home present a risk of harm to the child is a factual issue. Again, we apply the substantial evidence test." (In re N.M., supra, 197 Cal.App.4th at pp. 169-170.)
At the outset, Father contends that "[i]f any one of the jurisdictional allegations is reversed, the dispositional removal finding should be reversed because such a finding constituted a factor which the court improperly considered in the weighing process as it assessed whether removal should occur . . . ." However, none of the cases Father cites stand for that proposition. (Cf., e.g., In re C.B. (2010) 190 Cal.App.4th 102, 128 ["the juvenile court injected an improper factor into the weighing process" in terminating parental rights, "namely, the prospective adoptive parents' willingness to allow the children to have continued contact with mother"].) Further, the juvenile court made clear it removed Minor because of the history of domestic violence, and we have found those jurisdictional allegations were supported by substantial evidence. In particular, the court stated, "In today's decision I want to be very clear that today's result is the function of my belief that the domestic violence [that] has been present in the case is ongoing and has such a history that it poses a substantial risk of danger to this child." The court also commented, "It is really the domestic violence that I am focused on and as it relates to [Father.]"
On the merits, Father relies principally on the circumstance that Minor's sister was not removed from Father's custody. But Father cites no authority that is a proper basis to reverse a removal finding. As we previously observed with respect to the jurisdictional finding, we review the juvenile court's decision based on the evidence before it and cannot speculate as to why the Agency opted not to seek jurisdiction and removal of Minor's sister. Father also observes he has been attending anger management classes and is willing to continue to do so. However, Father denied having an anger management problem, denied any history of domestic violence, and made minimal overall progress on his case plan. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1657 [the mother's "denial" about her substance abuse and mental health problems relevant to removal decision].) Also, Father declined to participate in a March 2019 case planning meeting with the Agency. In any event, the evidence of a long history of violence supports the court's removal order despite any willingness on the part of Father to participate in services.
III. The Juvenile Court's Visitation Order Is Proper
"Visitation is a necessary and integral component of any reunification plan. [Citations.] 'An obvious prerequisite to family reunification is regular visits between the noncustodial parent or parents and the dependent children "as frequent[ly] as possible, consistent with the well-being of the minor." ' " (In re S.H. (2003) 111 Cal.App.4th 310, 317; see also § 362.1, subd. (a).) "The court may deny a parent visitation only if visitation would be harmful to the child." (Id. at p. 317, fn. 9; see also § 362.1, subd. (a)(1).)
In the present case, the juvenile court "ordered" the Agency to "arrange for visitation between [Minor and the parents]. That visitation is to occur as frequently as possible consistent with the child's well-being." The court also adopted a case plan recommended by the Agency that requires Father to visit Minor twice a week for two hours each visit. Father contends the court erred in failing to specify the frequency and duration of visits between Father and Minor in the visitation order.
The parties did not address the case plan in their briefs on appeal, but this court obtained supplemental briefing from the parties regarding the significance of the case plan.
The same argument Father makes on appeal was rejected by the Third District in In re Moriah T. (1994) 23 Cal.App.4th 1367 (Moriah T.). The visitation order in that case stated, " '[v]isitation rights be granted to [the father] as consistent with the well-being of the minor[s], and at the discretion of Child Protective Services as to the time, place and manner.' " (Moriah T., supra, 23 Cal.App.4th at p. 1372.) Further, the juvenile court had adopted a service plan that required the father to visit the minors " 'regularly.' " (Ibid.)
In concluding the juvenile court did not err, Moriah T. stated, "Here, the juvenile court did not give the CPS social worker complete discretion to decide whether any visitation should occur. The juvenile court adopted the CPS social worker's recommendation that appellant enter into and comply with a service plan which, among other things, required appellant to visit the minors 'regularly.' Having exercised its judicial authority in determining that appellant had a right to visit the minors regularly, the juvenile court delegated to CPS the responsibility to 'arrange for, and monitor visitation' which would be 'consistent with the well-being of the minor[s]' [citation], . . . and 'at the discretion of [CPS] as to the time, place and manner.' In effect, the juvenile court simply delegated to CPS the responsibility of managing the ministerial details of visitation." (In re Moriah T., supra, 23 Cal.App.4th at pp. 1374-1375.)
In Moriah T., supra, 23 Cal.App.4th at page 1375, the appellant argued the juvenile court "erred because its visitation order did not specify the frequency and length of visits." The court of appeal rejected the contention, concluding that "the frequency and length of visits are simply aspects of the time, place and manner of visitation." (Id. at p. 1376.) The court explained that "[t]he purposes of visitation orders in juvenile court dependency proceedings differ from those in family law cases where judicial officers often specify in detail the frequency and length of visits. Because circumstances have placed a child at substantial risk of harm and since intervention by the juvenile court is deemed necessary to protect the child, visitation arrangements, albeit important, are but a partial component of a family's case plan. The family plan must focus on the child's best interests and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm specified in section 300. . . . [¶] Consistent with these legislative dictates, a juvenile court relies on the county agency to manage each dependency case and to provide the court with information on the family's progress and on the well-being of the child. Because the period of juvenile court jurisdiction is designed to be relatively brief, the effectiveness of a family plan, including visitation, depends on the resources and flexibility of the agency charged with its implementation and supervision." (Moriah T., at pp. 1375-1376.) "Thus, . . . the juvenile court may delegate to the probation officer or social worker the responsibility to manage the details of visitation, including time, place and manner thereof. . . . Only when a visitation order delegates to the probation office or county welfare department the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine." (Id. at p. 1374; see also In re Chantal S. (1996) 13 Cal.4th 196, 213 [observing that in Moriah T. "the limited delegation was to a public entity statutorily bound to act as a cooperative arm of the juvenile court"].)
The Fifth District court of appeal followed Moriah T. in In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 (Christopher H.). The Christopher H. decision embraced Moriah T's reasoning, and applied it to uphold a " 'bare bones' " visitation order that adopted the "social worker's recommendation of 'reasonable visits.' " (Christopher H., supra, 50 Cal.App.4th at p. 1009.) In that case, the father was incarcerated and the minor had significant medical needs, and the court of appeal observed that "[w]hat constitutes 'reasonable' visitation in light of [the father's] need for contact with [the minor] and [the minor's] best interests will vary." (Id. at p. 1010.)
The Third District again addressed the Moriah T. decision in In re Kyle E. (2010) 185 Cal.App.4th 1130 (Kyle E.). There, the written visitation order stated, " 'The father shall have supervised visitation with [the minor] as frequent as is consistent with the well-being of [the minor]. [The Department] shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, and by whom they are supervised." (Id. at p. 1135.) The court of appeal concluded that the written order effectively delegated authority to the child services agency "regarding whether visitation would occur at all." (Id. at p. 1136.) Kyle E. characterized Moriah T. as holding "it was not an improper delegation of authority to allow the social services agency to determine the frequency and length of visits when the order provided for regular visitation." (Kyle E., at p. 1135 [emphasis added].) Because the juvenile court's oral pronouncement also lacked detail, Kyle E. remanded with instructions that the juvenile court "clarify the terms and conditions applicable to appellant's visitation, including, but not limited to, a minimum number of visits or that visitation is to occur regularly." (Kyle E., at p. 1136.)
The visitation order in the present case is clearly proper under Moriah T., Christopher H., and Kyle E. Although the written order itself—materially indistinguishable from the written order in Kyle E.—requires only visitation "as frequently as possible consistent with the child's well-being," the juvenile court's case plan provides for twice weekly visitation. That added specificity is parallel to the regular visitation provided for in the service plan in Moriah T. In his supplemental brief, Father does not dispute that, when the case plan is taken into consideration, the juvenile court's orders are adequately specific under Moriah T.
The case plan is also adequately specific to satisfy dictum in In re Jennifer G. (1990) 221 Cal.App.3d 752, at page 757, requiring the juvenile court to determine "the frequency and length of visitation." Note that Moriah T., supra, 23 Cal.App.4th at page 1375, criticized that dictum: "the Jennifer G. dictum is at odds with the purposes and practical necessities of a visitation order intended to protect the well-being of a dependent child while both maintaining ties between the child and parent or guardian and providing the parent or guardian with an opportunity to demonstrate why his or her right to custody and care of the child should be reestablished."
On the other hand, Father does argue in his supplemental brief that the juvenile court improperly delegated discretion to the Agency because the case plan states, "Visitation may be increased or decreased at the discretion of the Agency." But the Moriah T. court observed that "A juvenile court cannot be expected to anticipate and promptly respond to changing dynamics of the relationship between parent or guardian and child, which changes may dictate immediate increases or decreases in visitation or demand variations in the time, place and length of particular visits. Juvenile court judicial officers simply do not have the time and resources to constantly fine tune an order in response to the progress or lack thereof in the visitation arrangement, or in reaction to physical or psychological conduct which may threaten the child's well-being. Thus, parties in a dependency proceeding should not be locked into a visitation order which specifies a rigid schedule and length of visits. Such an order is not in the best interests of either the child or the parent or guardian because it fails to allow the flexibility necessary to rapidly accommodate the evolving needs of the dependent child and his or her parent or guardian." (Moriah T., supra, 23 Cal.App.4th at p. 1376.) The discretion accorded to the Agency in the case plan is proper under that reasoning. The cases cited by Father are not to the contrary. Among other things, the Agency is unlike a child, guardian, parent, therapist, or any other person that might be given discretion as to visitation, because the Agency " 'acts as an arm of the court in the best interests of the minor.' " (Id. at p. 1374.)
We observe that the juvenile court continues to supervise this dependency case and visitation problems may be brought to the juvenile court's attention at a future periodic review hearing or via a section 388 petition. (See In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238 [a parent may "bring to the attention of the juvenile court any difficulties encountered with the Department's administration of the visitation order or inform the court of matters which would justify a change in the order"]; see also Moriah T., supra, 23 Cal.App.4th at p. 1377 ["if the agency is abusing its responsibility in managing the details of visitation, the parent or guardian may bring that matter to the attention of the juvenile court by way of a section 388 petition to modify the visitation order"].)
DISPOSITION
We modify the juvenile court's orders to reflect the court's finding that Father's progress toward alleviating the causes necessitating removal was minimal and to clarify that the Agency's b-6(c) jurisdictional allegation was withdrawn and not sustained. The juvenile court is directed to modify its May 15, 2019 minute order in those respects. The court's orders are otherwise affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BURNS, J.