Opinion
A153412
07-24-2018
In re ROMAN R., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. ANTONIO R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV170125)
Antonio R., the father of Roman R., appeals from the juvenile court's "exit orders" terminating Roman's dependency case, which had been brought under Welfare and Institutions Code section 300. He contends the court abused its discretion by in effect improperly delegating its judicial power to determine Antonio's visitations to Roman's mother. We disagree and affirm the court's orders.
All statutory references are to the Welfare and Institutions Code.
BACKGROUND
In June 2017, the Humboldt County Department of Health and Human Services (Department) filed its section 300 petition regarding Roman, then almost 18 months old. Among other things, the Department alleged under section 300, subdivision (b) that there had been a parental failure to protect Roman adequately because Roman's father, Antonio, had "unaddressed anger management or mental health issues and engages in Domestic Violence in the presence of [Roman R.]. [Antonio] has a history of engaging in domestic violence and was recently arrested and incarcerated for Domestic Violence incidents . . . . Such incidents included [Antonio] hitting and kicking the mother . . . , resulting in abrasions all over her body, black eyes, and bruising all over her body due to the attacks. Roman was present for these incidents and has been held in the arms of a parent during incidents of violence in the past. Such domestic violence places the child at substantial risk of suffering serious physical harm or illness."
In its detention report, the Department wrote that it filed its petition after a third party reported that Antonio had physically abused mother "for a very long time," including in Roman's presence. The reporting party said that a few months before, Antonio had held Roman as he attacked mother until she was unconscious, resulting in Antonio's arrest. After initially seeking a restraining order against Antonio, mother allowed him back in the home.
A few days after the Department received the referral, Antonio attacked mother while Roman was napping in another room. Antonio was arrested and taken into custody, and mother obtained an emergency protective order against him. She told the social worker she previously had been in a three-year romantic relationship with Antonio. He had physically abused her repeatedly, fled to Florida after a 2016 arrest and returned in March 2017. She did not want him back in her home, but did not think she could block him because he was a lessee of the premises. She opposed Antonio having unsupervised contact with Roman, stating that on one occasion Antonio had become upset while driving and threatened to kill Roman and her by wrecking the vehicle.
At the detention hearing, the court authorized release of Roman to mother. It ordered the Department to provide drug monitoring, random drug screens and anger management counseling for Antonio, and allow him supervised visits with Roman twice a week for two hours each.
In an August 2017 jurisdictional report, the Department indicated that Antonio had been convicted of inflicting corporal abuse on a spouse or cohabitant in 2015. In March 2017, he was arrested on an outstanding warrant for two counts of this same offense, then arrested on April 30, 2017, for two more counts of this offense and one count of battery of a spouse or cohabitant.
At the jurisdictional hearing, Antonio submitted to the court for a determination of the "failure to protect" allegation that we have already summarized, and the court struck the other allegations. The court made a jurisdictional finding that Antonio failed to protect Roman.
In its September 2017 disposition report, the Department wrote that mother no longer allowed Antonio in her home and had shown she could provide Roman with a safe and secure home and meet his needs. Antonio had taken steps to sever his relationship with mother, had found a residence elsewhere and was on a waiting list to begin a domestic violence batterer program, but had yet to engage in services to address his anger and domestic violence. His supervised visits with Roman had been "positive," and he had shown that he could meet Roman's basic needs. The Department recommended the court order that mother have full legal and physical custody of Roman and terminate the dependency. The Department also recommended the court find that mother had made adequate progress in alleviating or mitigating the causes of Roman's placement, that Antonio had made only minimal progress, that the return of Roman to the care and custody of Antonio would create a substantial risk of harm to Roman, and that Antonio be allowed supervised visitation with Roman for two hours a week "supervised by a responsible adult agreed upon by both parents or by a professional visitation supervisor" paid for by Antonio.
At the disposition hearing, which was held on several dates over several months, the court and the parties addressed Antonio's supervised visitations, paying particular attention to how visitation might be supervised by a volunteer agreed to by both parents. On the first day of the hearing, in September 2017, Antonio's counsel said Antonio might agree with supervised visitation, but asked that the matter be set for mediation to work out the details of that supervision. Mother agreed with the Department's recommendation, did not want to attend meditation with Antonio because of his violence, and did not know anyone who would volunteer to supervise Antonio's visitations. Her counsel was also concerned about her contact with Antonio if no supervisor was in place. The court set the matter for contest at Antonio's request.
At a continuation of the disposition hearing in November 2017, Antonio asked the court to exercise its discretion under section 361.2, subdivision (b)(3) to keep the dependency case open so he could continue to receive supervised visitation services. His counsel introduced visit logs summarizing Antonio's visits with Roman in the months prior to the hearing. Antonio testified about his limited income of $800 a month working part-time and his living expenses, and acknowledged he was not paying child support. He thought a professional supervisor would cost $100-120 an hour based on information from one potential supervisor, to which the court commented that this amount was probably for two hours. Antonio acknowledged leaving many of his visits with Roman early, but contended he only left about "five minutes" early to "catch the bus." Mother testified in rebuttal that she was typically notified that Antonio's visits had finished anywhere from 15 minutes to an hour earlier than scheduled.
The Department contended that because Roman was not removed from a parent who was entitled to reunification services, the court did not have discretion to extend services under section 361.2. It asked the court to terminate jurisdiction and grant Antonio supervised visitation. It argued that, although it was "a sad situation where the dad doesn't have much additional funds," Antonio was not paying child support and his paying for a visitation supervisor was not an undue burden because his own actions had caused the need for supervision. Mother's counsel agreed with the Department's position. Minor's counsel did as well, but later indicated she would like Antonio to receive some parenting services if possible based on her review of the visit logs.
Antonio's counsel contended that Antonio's visits had been beneficial to Roman and that Antonio had demonstrated a commitment to Roman by his regular visits. He asked the court to keep the case open for a period of time so that Antonio was not cut off from Roman.
The court agreed that there had been "some really positive interaction" between Antonio and Roman that would "wither away" if visitation did not continue. The court thought it would be in Roman's best interest to provide more services, but did not know if the law supported this, and did not know whether the parents could communicate under mother's existing restraining order against Antonio. It continued the hearing so that the parties could look into these matters.
Prior to the next hearing date, also in November 2017, the Department filed an at-issue memorandum asserting that mother should retain physical custody of Roman under section 361, subdivision (c)(1)(B); that Antonio did not qualify for and should not be provided with reunification services; and that the court had no authority to subsidize Antonio's supervised visitations if he could not afford to pay for them. The Department repeated that Antonio should shoulder the cost of a supervisor because his own conduct made one necessary, and asserted that in any event he could later ask the family law court to change the juvenile court's visitation or custody orders.
At the hearing, Antonio's counsel argued that the court had broad authority under section 362 to make any ruling about services that was in Roman's best interests. Minor's counsel agreed with the Department's position. Mother's counsel contended father's domestic violence, including in Roman's presence, made mother's request for supervised visitation reasonable and stated mother had concerns about the nonprofessional monitors Antonio had suggested to her. Antonio's counsel said mother had not explained her concerns. The court indicated both that mother had the right to not engage with Antonio because of his past behavior and that it thought there was value in Antonio maintaining a relationship with Roman. It continued the hearing again and asked the parties to further attempt to work out their visitation issues.
After another continuance, the court held the final session of the disposition hearing in January 2018. Antonio's counsel reported that Antonio had brought a list of over a dozen names and phone numbers to court that day for mother to consider as potential visitation supervisors. Mother's counsel said mother did not know any of these people and, further, had spoken to those previously suggested by Antonio, none of whom said they would supervise visits. A Department social worker reported that father had missed every other visit in the previous month, including one where he did not contact the Department about his absence, and had left the visits he attended 15 to 30 minutes early. The court stated that mother did not have the burden to find a supervisor, it was not reasonable to expect her to agree to anyone she did not know and had not had the opportunity to contact, visitation monitored by a professional supervisor was the "default," and Antonio had had an opportunity to find a supervisor agreeable to mother and had not done so. The court also thought a professional supervisor might be a better outcome for Antonio because he or she would be able to document Antonio's visits and testify about them in the future, to the extent the visits went well. The court ordered that the parents could communicate by email about visitation and encouraged them to continue their efforts to find a mutually agreeable voluntary supervisor. It entered the exit orders recommended by the Department, including that Antonio was to have two hours of visitation a week to be supervised by a responsible adult agreed to by both parents or a professional supervisor paid for by Antonio, and terminated the dependency.
Antonio filed a timely appeal from the court's orders.
DISCUSSION
Antonio's appeal challenges only the court's orders regarding who would supervise his visits with Roman. His principal argument is that the juvenile court abused its discretion "when it allowed mother unfettered discretion to determine within a reasonable time whether [Antonio's] prospective supervisors met mother's satisfaction." He argues this was an unlawful delegation of judicial power because mother could in effect determine whether he could have visitation with Antonio at all, since the record indicates he could not pay for a professional supervisor. We disagree.
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123; §§ 364, 362.4.) We review such orders for abuse of discretion. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) An improper delegation of judicial power over visitation constitutes an abuse of discretion. (In re James T. (2007) 153 Cal.App.4th 413.) However, a court may delegate management of visitation to other parties so long as it retains discretion to determine whether visitation will occur. (See, e.g., In re Chantal S. (1996) 13 Cal.4th 196, 213-214 [affirming juvenile court exit order that conditioned visitation on father's satisfactory progress in psychotherapy as determined by his therapist]; In re A.C. (2011) 197 Cal.App.4th 796, 798-800 [affirming an exit order authorizing parents to agree on a visitation supervisor or, if they could not agree, father to choose a supervisor]; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1011 [order that social services agency arrange "reasonable" visitation during father's incarceration was not an improper delegation of judicial power].)
Here, the juvenile court did not delegate any of its judicial power to mother regarding Antonio's visitation with Roman. It ordered that Antonio had the right to two hours a week of supervised visitation with Roman. It did not make such visitation contingent on approval by mother. Antonio could assure visitation even if he was unable to reach agreement with mother on a voluntary supervisor by arranging for a professional supervisor. He does not and cannot contend mother was responsible for his financial condition and claimed inability to pay for professional supervision.
Antonio does not directly challenge the court's order that his visits with Roman had to be supervised. He does, however, characterize the need for visitation supervision as "minimal, even nonexistent" because he only engaged in "negative behavior" in his "interactions with mother" and did not endanger Roman's physical health or safety "outside of the presence of mother." We briefly address this underwhelming contention, to the extent it implies a challenge to the supervision requirement. The record reflects that Antonio's violence against mother was persistent over time, suggesting he had a deep-seated problem; that Antonio acted without regard for Roman's physical and mental safety when he held Roman as he beat mother into unconsciousness; that Antonio resisted dealing with his problems by not engaging in services regarding anger management and domestic violence promptly after these services were made available to him; and that mother reported to the Department that Antonio had once threatened to wreck his vehicle, thereby killing mother and Roman, when Antonio became upset while driving. The evidence is more than sufficient to support the court's order requiring that Antonio's visits with Roman be supervised.
Further, the evidence that Antonio often left his visits with Roman earlier than their scheduled end and repeatedly missed visits recently also supports the court's conclusion that supervision was needed. Roman was entitled to a degree of consistency and predictability in his relationship with his Antonio.
Antonio's "delegation of judicial power" argument is also premised on two contentions that he did not prove below. First, he claims he could not afford to pay for any visitations with Roman. However, the record suggests Antonio could potentially afford to pay for at least some supervised visitation because he was working part-time. Also, nothing in the record indicates that he could not have worked longer hours, and earned more income to apply to his visitation costs.
Second, Antonio claims mother effectively eliminated his ability to visit with Roman because she was unwilling to agree to any monitor at all. The record does not support this contention, either. Mother did not object to the court's repeated continuances of the disposition hearing over several months to enable Antonio to identify a voluntary supervisor who was acceptable to mother. According to her counsel, mother demonstrated her good faith by contacting the individuals identified by Antonio, only to learn that none of them were willing to supervise visits. Antonio did not challenge these assertions. Nor was mother required to agree to visitation supervised by individuals Antonio first suggested at the final session of the disposition hearing when she had no opportunity to contact them.
Finally, we note that the juvenile court did nothing to prevent Antonio from continuing his efforts to arrange a voluntary supervisor for his visitation with Roman. Rather, the court's exit order continued to give him and mother the option of engaging a voluntary supervisor of Antonio's visitation with Roman if they could agree on such a person. Also, as the Department points out, Antonio retained the right to seek in family law court a modification of the court's visitation order should he be unable to visit at all with Roman due to any improper obstruction by mother. (See, e.g., In re A.B. (2014) 230 Cal.App.4th 1420 1439 ["If the dependency court decides to terminate its jurisdiction, the noncustodial parent's interests in custody and visitation can be heard in the family law court"].)
Antonio's citations to case law authority are also unpersuasive. In In re Julie M., the appellate court found a juvenile court's visitation order had improperly delegated judicial power to children whose approval was necessary for any visitation to occur. (In re Julie M. (1999) 69 Cal.App.4th 41, 46, 48-51.) In In re Christopher H., the appellate court found the juvenile court did not improperly delegate judicial power to the social service agency when it ordered that the father have " 'reasonable visits' " with his son during the father's incarceration, even if this order was " 'bare bones.' " (In re Christopher H., supra, 50 Cal.App.4th at pp. 1008-1009.) In In re Jennifer G., the appellate court concluded that the juvenile court had improperly delegated visitation responsibility to the social services agency without first determining whether any visitation would occur, and its frequency and length. (In re Jennifer G. (1990) 221 Ca1.App.3d 752, 756-758.) In In re S.H., the appellate court concluded the juvenile court improperly delegated its judicial power because the juvenile court, although it recognized mother's visitation right, failed to "mandate any minimum number of monitored visits per month or even to order that some visitation must occur each month," and allowed the children to refuse " 'a visit,' " thereby giving the children "the practical ability to forestall any visits at all." (In re S.H. (2003) 111 Cal.App.4th 310, 319.)
None of the circumstances discussed in these cases disapproving of a visitation order are present here. The juvenile court left nothing to mother or the Department to approve that could block Antonio's visitation. It ordered that he had the unconditional right to two hours of supervised visitation a week, whether supervised by a person mutually agreed upon by the parents or a professional supervisor paid for by him. As the Department points out, these circumstances are much like those in In re A.C., supra, 197 Cal.App.4th 796, another case cited by Antonio. There, the appellate court rejected mother's contention that the juvenile court had improperly delegated its powers regarding visitation to the parents when it ordered supervised visitation, provided that the parents would agree to a monitor, and, if they could not agree, that father would choose the monitor. (Id. at pp. 799-800.) The court held the order was not improper because it "did not indicate that the parents were to determine visitation." (Id. at p. 800.) The court here effectively ordered the same arrangement. Its visitation order was not an abuse of discretion.
Antonio also briefly argues that the juvenile court's exit order "was fundamentally inconsistent with the termination of jurisdiction" because it included that mother investigate each person on Antonio's list of potential supervisors, thereby effectively extending its jurisdiction beyond termination. This argument is without merit because it is based on a mischaracterization of the court's statements during the last session of the disposition hearing. The court encouraged mother to further consider the list Antonio brought to court that day without ordering her to do so.
DISPOSITION
The orders appealed from are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.