Opinion
NOT TO BE PUBLISHED
APPEAL from findings and orders of the Superior Court of Los Angeles County. Ct. No. CK64026, Donna Levin, Juvenile Court Referee.
The Law Office of Liana Serobian and Liana Serobian for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST J.
D.A. (mother) appeals from various rulings of the juvenile court with respect to the dependency case initiated on behalf of her daughter, D.A. (minor). According to mother: (1) the jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b) and (c) were not supported by substantial evidence; (2) the juvenile court denied mother a fair jurisdictional hearing due to evidentiary error and the appearance of bias; (3) the juvenile court abused its discretion by refusing to order the minor placed in the home of her aunt and uncle; and (4) the juvenile court improperly delegated power to third parties to determine the duration and frequency of visits and conjoint counseling. We conclude that the evidence did not support jurisdiction under section 300, subdivision (b) and therefore reverse the related findings and order. We reverse the visitation order and remand with instructions for the juvenile court to enter a new visitation order that sufficiently defines mother’s rights. In all other respects, we find no error and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
Mother’s marriage; the minor’s birth; immigration to the United States
Mother married E.A. (father) in Kenya in 1993 and she conceived the minor in a planned pregnancy. The minor was born in January 1994. Two years later, father was killed in an auto accident. Mother moved to California in 1997 to further her education. She enrolled in Santa Monica City College and then transferred to the University of California, Los Angeles and earned a Bachelor of Science degree in nursing. While mother was attending school and getting settled, the minor stayed in Kenya with her maternal aunt and uncle, Mary K. (Mary) and Phillip K. (Phillip). During the time the minor was being raised by Mary and Phillip, mother spoke to the minor on the phone daily and traveled to Africa for month long visits. Mary, Phillip and the minor moved to California when the minor was six years old. A half a year later, mother and the minor reunified.
Two prior referrals; the prior dependency case; the minor’s difficulties in school; the three letters
In 2004, the minor was doing poorly in school, lying and getting into trouble. As a result, she went to counseling with a school counselor. She told the counselor that mother hit her on the forearm with a curtain rod upon learning that the minor stole from a classmate. She also said that mother had hit her in the past with belts, belt buckles and the heel of a shoe on the buttocks, back and other areas. The counselor reported the abuse to the Department of Children and Family Services (Department). It investigated. The referral was substantiated and the family was categorized as low risk for future abuse. The social worker explained to mother that when disciplining the minor, mother should use alternative forms of discipline such as time outs and other forms of behavioral modification. Mother agreed. The minor said she felt safe with mother. She promised that she would attempt to do better in school and stay out of trouble. The social worker referred mother to the ACTION program and individual counseling. The referral was closed without services being offered.
The minor was suspended from junior high school in May 2006 for fighting with a student on a bus. Later that year, she told her algebra tutor that she was “boy crazy.” She was out of control and defiant, so mother placed her in boarding school. The boarding school, however, expelled her because she could not get along with the other students. Mother enrolled the minor in a private school but soon pulled her out upon catching the minor going to a party with some kids who mother believed were negative influences.
The minor wrote a letter to mother dated September 16, 2006, in which she stated: “I want to [apologize] for being a disgrace to you. I was really trying hard to be good. Remember when we went to church and the pastor preached about how you can be so good then Satan comes in and you do something bad[?] I think that is what happened. Although I am not trying to make excuses for my actions, I will take full responsibility for my actions good and bad. I am very sorry for being the way I am. I don’t know what’s wrong with me but I will try to make you proud. I have improved my grades a bit but that doesn’t matter unless I shape up. I know you work hard to provide for me by yourself and I am trul[]y grateful for that. I also know that when you get mad when I do something bad it is because you work so hard that it frustrates you and also because you want me to become a better person. I appreciate you and everything you do. I may not show it but I really do....”
In a letter with the same date, the minor wrote to someone named “Sarah” and apologized for stealing her money.
In October 2006, the Department received a second referral. The minor disclosed that mother struck the minor on the hand with a curtain rod because she had friends in the family home without permission. She suffered a broken finger. Afterwards, mother took the minor to the emergency room and instructed her to lie and say she had injured her finger after falling while on a hike. The minor also reported that mother had recently hit her with a curtain rod for stealing from a houseguest. Further, the evidence revealed that on numerous occasions, mother struck the minor with a broom and wooden stick and forced her to wear long sleeves to cover the bruises. The Department detained the minor and placed her with relatives. It filed a petition on the minor’s behalf pursuant to section 300, subdivisions (a) and (b). The petition was sustained but the minor was not removed from mother’s custody. The Department provided family maintenance services and mother completed all of the counseling that the Department asked her to complete. In addition, mother took the minor to court-ordered therapy and her behavior improved for a while. The juvenile court terminated jurisdiction in October 2007.
According to mother’s opening brief, she “admitted to inappropriately physically disciplining [the minor] after [the minor] was caught stealing; she successfully reunified with her daughter.” The detention report states that on October 6, 2006, mother “physically abused [the minor] by repeatedly striking [the minor] about the body, including [the minor’s] buttocks, legs, arms and back with a metal rod and a metal broom. Further, [the minor] sustained a broken finger and bruising and welts to [the minor’s] arms and legs.” (Italics omitted.)
The Department represents that mother “received extensive counseling to address anger management and parenting.” The record, however, does not establish what counseling she received.
In a letter to mother dated November 15, 2008, the minor apologized to mother for changing a phone plan without permission and promised to get a job to earn money to pay the phone bill. She ended the letter by stating: “I... realize that you love me and just want the best for me but I keep disappointing.” In an undated letter to mother, the minor wrote: “I am writing this letter of apology for my poor behavior. I wish to say that all my bad actions are not tolerated by you and that I understand that. I am sincerely asking for your forgiveness for my bad behavior. I hope we can have a good mother-daughter relationship. I know that if I stay on your good side, we can be able to do that. I really do want that relationship where I can just come to you for anything. I know to achieve that I will have to make you a proud mother. I hope that you can find it in your wonderful heart to be able to forgive me. I am truly sorry for my bad behavior.”
Until mid-2009, the minor received mostly As and Bs in school and an occasional C. She was receiving counseling at her school in Newbury Park. But in June of that year, she was expelled from school. Mother did not take the minor to any more therapy. She was going to church and talking to church counselors instead. The minor continued to lie to mother and be defiant. Her bad behavior came and went. In the fall of 2009, her grades plummeted and she began receiving some Cs, Ds and Fs in her classes. A progress report stated that her grades were affected by absences and lack of effort.
The minor’s behavior in early 2010; the minor’s purported desire to kill herself; the investigation
The minor began hanging out at a park to have sex.
In mid-February 2010, mother’s brother, Joseph O. (Joseph), went to pick the minor up from high school. She was supposed to be attending track, an athletic program. But she was absent. He texted her and she texted back that she was at Central Park, which Joseph thought was strange. He found her dressed in “hoochie” shorts and asked why she was dressed that way. She said that she had just come from track practice. In his mind, it did not look like she had exercised.
Irene, mother’s niece, told mother that the minor was seeing an 18-year-old boy. Mother searched the minor’s room and found condoms and vaginal contraceptives under her bed. She spoke to the minor for three hours about safe sex practices. Subsequently, mother took the minor to get checked by a doctor. The doctor scheduled a blood test to determine whether the minor had contracted any sexually transmitted diseases.
On March 23, 2010, the minor’s school counselor called mother to report that she had been missing class and track. As a result, she had been removed from the track team. The minor was supposed to be home at 4:30 p.m. after track and call mother to report in. The minor did not call. Mother got home from work at 8:30 p.m., found the minor in the kitchen doing homework and asked why she had not called. The minor said she had been at track and forgot to call when she got home. At that point, mother informed the minor about the phone call from the school counselor. Confronted with her lie, the minor refused to talk. Mother yelled at the minor, and then took away her iPod, cell phone and computer.
The minor left the family home through the garage at about 9:00 p.m. Mother filed a missing person report with the police.
At a neighbor’s house, the minor called the Department and said she could not go home for fear of being hit by mother. Deputy Sheriffs returned the minor to mother and she arranged for the minor to spend the night with Joseph. Joseph brought the minor back the next morning. Social worker Inay paid a visit and found mother, Joseph and the minor in conflict because the minor was wearing baggy sweats and a sweat shirt that were in violation of her school’s dress code. She refused to change into something more appropriate for school. The minor was interviewed. She alleged that mother hit her after they argued about her not calling when she returned home from school. Social worker Inay suggested that mother and the minor enter counseling and follow up with the Department.
Later that day, mother went to the minor’s school. The track coach said that the minor had not been showing up for track and the assistant principal revealed that the minor claimed to be so depressed that she was going to kill herself. Mother planned to take the minor to a hospital, but the school psychologist said the minor had not reached that level yet. The school psychologist recommended taking the minor to a crisis center. Mother followed the recommendation. She and the minor met with a counselor at the crisis center for three hours. The crisis center devised a plan. The minor was supposed to go to school the next day. If she felt like killing herself, she was supposed to report her feelings to the assistant principal and a teacher. The minor was scheduled to spend the weekend with Irene, mother’s niece, if possible.
The minor testified that the plan was for her to go to Irene’s on Friday night but nobody picked her up.
The threat of suicide; the minor’s letter; subsequent interviews
On February 27, 2010, mother woke the minor up and told her to get ready and pack to go to Irene’s house. Mother and the minor argued about her behavior at school. The minor got angry, grabbed two knives and said she was going to kill herself. She locked herself in the bathroom with the knives and wrote a letter to mother about her thoughts and feelings.
In the letter, the minor told mother that “[y]ou have always managed to kill my self-esteem.” The minor included statements such as: “[F]rom calling me fat to buying me 2x clothes[, t]hat hurts and show me that’s all you think of when you see me”; “You have made me hate you so much to the point where I gave up on school”; “You were never pleased with the grades I had before so I wanted to show you they could be lower”; “I don’t see a point to live anymore”; “If I stay with you I know these feelings will get stronger”; “Now I’ll sharpen this knife and drive it into me”; “I’m scared of what the blood test results might reveal”; and “I’m scared I would suffer for a long time”; “I think you want me to die.” The minor drew a picture of herself in the bathroom with the knives and mother standing outside laughing and saying, “Finally!” The minor also drew a picture of mother attending the minor’s funeral, laughing and saying, “I guess no one cares.”
Mother was afraid that the minor was going to hurt herself, so she called the Sheriff’s Department. The minor told a sheriff’s deputy that she wants to kill herself. She said she suffers from depression, does not feel good and hates that mother kills her self-esteem. Deputies took the minor to Olive View Hospital. She then transferred to BHC-Alhambra and was diagnosed with “Axis I-Major Depression.” Her doctors prescribed an antidepressant called Celexa. Mother spoke to the case manager at BHC-Alhambra. She also spoke to the nurses on a daily basis. Before the minor was released, the case manager made arrangements for her to stay with Mary and Phillip. She was released on March 8, 2010, which was a Monday. Mother was told to make follow up appointments, which she did. She made an appointment for the minor to see a counselor that week, and an appointment for the minor to see a psychiatrist during the next week.
The minor stopped taking her prescribed medicine.
When interviewed, mother denied ever calling the minor degrading names. She said that she took away inappropriate clothes that she did not buy the minor such as short skirts and short shorts.
On March 11, 2010, the minor spoke with social worker Camarillo-Valle. The minor reported that she had been really depressed and that mother brings her down. When she thought of returning to mother’s home, she wanted to hurt herself. She had not spoken to mother since being released from the hospital and did not want to return to mother’s home. The minor complained that mother took clothes away from her and then would make her wear a mismatched outfit for a week. Mother buys the minor clothes that are two times too big. According to the minor, the length of her stay with Mary and Phillip was uncertain because the minor was not reassured that they would protect her from mother.
Next, social worker Camarillo-Valle spoke to several witnesses including the minor’s school psychologist, J. McDonald (McDonald). He said he knew about the hospitalization and that there was an ongoing concern that the minor would hurt herself if she returned to mother’s care. He was concerned that the minor would have to return to the hospital due to suicidal ideation.
The letter to the minor
Mother discovered a letter addressed to the minor. It stated: “Hi.... I just want to tell you that I love you and that we will get through this[.] I’m sorry the plan did not work out of saying that you want to kill yourself so that you can be placed in [a] foster home where you will have your freedom and no rules. Where we can see each other. [¶] Now that you are home say that you are afraid of your mom and that she beats you up. Abuse you physically. Everyone will believe you[.] She hit you before. [T]hen write in your journal crazy stuff and people will actually think you are crazy and suicidal. You have to act like it. Cry if you need to[, ] those social workers will believe you when you act like it[, ] believe me it works. Regarding staying [with] your aunt or uncle[, ] say that you don’t feel safe there and that you prefer [a] foster home. Once you are there we can see each other more often[, ] there will be no rules[.] [¶] Sorry have to go to practice[.] I miss you a lot[.] Stay strong and act like it if you want your freedom or else you will be locked down until you reach 18. [¶]... [¶] ps don’t feel bad that you are [lying] about your mom[, ] that’s the only way you can get your freedom and for us to be together. I wish when you left and went to the neighbors you would have scratched [yourself to] show the cops that you[r] mom hit you then she could have gone to jail and then they would place you in [a] foster home.”
When this letter was written, and when it was received by the minor, are not established by the record.
The section 300 petition; the detention hearing; foster care; the second hospitalization
On March 11, 2010, the minor was placed in the foster home of D. Knight (Knight). The Department filed a section 300 petition pursuant to subdivisions (a), (b) and (c). It alleged that mother physically abused the minor and she was at risk of physical and emotional harm. The juvenile court found a prima facie case for detention and ordered the Department to detain the minor in shelter care or with a relative. Mother was granted visitation in a therapeutic setting and the minor was ordered into counseling.
Knight and the minor had a conflict on March 16, 2010, because Knight did not want the minor to eat junk food before dinner and because she discovered that the minor erased the browser history on the computer. She reminded the minor of the house rules, informed her she would have to follow those rules and that she would be monitored in an ongoing manner until they built up trust. The minor became upset and stomped into her bedroom with her phone. She came out and falsely reported that she had gotten permission from social worker Camarillo-Valle to leave. When Knight questioned the minor, she admitted that she had not spoken to social worker Camarillo-Valle and instead had only left her a voicemail message. The minor then walked out of the home. Knight immediately filed a missing person report. Sheriff’s deputies eventually returned the minor to Knight’s custody. The minor refused to talk to Knight and had a bad attitude with the deputies. Knight informed social worker Camarillo-Valle that she could not continue the placement.
A few days later, the minor was placed in the home of G. Thomas (Thomas). Mother requested visitation but the minor said she did not want any visitation. At this point, the minor was enrolled in a new school. She became upset when she learned that her prior course work would not be transferred for credit. On March 29, 2010, the minor appeared to be extremely depressed. She was once again admitted at BHC-Alhambra hospital. The minor was discharged from BHC-Alhambra hospital on April 3, 2010, with a plan of her seeing a crisis stabilization therapist until she was accepted for Full Service Partnership services.
At some point, the minor wrote in her journal and set forth a series of thoughts directed at mother. The minor started out by stating: “I don’t like the fact that you left me when I was little. My dad died and you had to leave me—abandon me like it was nothing. I was little[.] I didn’t really know what was going on but when I grew up and I started to understand, I was hurt.”
The amended section 300 petition
On April 1, 2010, the Department filed a report that averred: “Presently, the evidence does not clearly and fully substantiate the current allegations of physical abuse, however, clear evidence has been documented that the minor’s current emotional state has resulted from the prior disruptive and present neglectful role and attention to intervene on the part of mother.”
The report noted that mother was willing to cooperate with services to work toward reunification; she was employed, maintained a stable home, and was pursuing a masters degree; she had provided the basic necessities for the minor; and they have extended family support. Mother stated that she feels that family counseling is needed to resolve the current problems.
The Department filed an amended section 300 petition. The count under section 300, subdivision (a) was deleted. The counts under section 300, subdivisions (b) and (c) were identical. They both alleged: “The [minor] has special and unique needs including suffering from a diagnosis of Major Depression. Further[, ] there exists a parent child conflict between the mother and [the minor] which is exacerbated by the [minor’s] mental health issues. Recently, on more than one occasion, the [minor] has been hospitalized for psychiatric intervention. Even after such a psychiatric intervention, the [minor] continues to refuse to return home and threatens to kill herself if forced to do so. Such parent child conflict and the mother’s limited ability to address the [minor’s] mental health needs without professional assistance, creates a detrimental home environment and puts the [minor] at substantial risk of serious emotional damage and physical harm.”
The jurisdictional and dispositional hearing
The minor was the first to testify.
When asked if she was depressed, the minor said, “A little bit.” At the time of the hearing, she was taking her medication. However, she testified that she did not feel good enough to return to mother’s custody. She was not in counseling but she admitted that the day before she went to see an “emergency person.” According to the minor, she had been feeling her depression for a couple of months. The minor was asked how many times mother took her in 2010 to get counseling. She responded: “My mom didn’t take me, the police took me.”
During her testimony, the minor made it clear she does not want to go home and does not want to see mother.
Mother testified next. Since the minor was 13, mother had a problem with the minor lying. When mother told the minor not to do something, the minor would still do it. In an attempt to improve the minor’s behavior, mother took things away from her.
Asked to opine why the minor is angry and does not want to live at home, mother stated: “[The minor] is angry because... I won’t let her do what she wants to do. I set rules in my house. I set boundaries that need to be followed.” Another reason, according to mother, was that the minor wanted to work and have a boyfriend but mother would not allow it because the minor had bad grades and had not proven herself.
The Department’s investigator, D. Kuper (Kuper), was the last to testify. She was the one who completed the jurisdiction and disposition report. When asked, she conceded that she did not interview personnel at BHC-Alhambra, the minor’s school counselor or the counselor at the crisis center. Kuper also admitted that no one provided her with any documentation or references with respect to the cause of the minor’s depression.
After the testimony concluded, the juvenile court announced its findings and rulings. It found that after mother took the minor to the court-ordered therapy in 2006, mother did not seek out any more assistance. Though the minor did not improve, mother did not want to recognize it. According to the juvenile court: “I think there’s been terrible neglect here. And I think the neglect is that [mother has] not been able to see [the minor] going on a downhill spiral. [¶] [The minor is] a very bright kid, she started getting bad grades, she started cutting school. [Mother] wasn’t there for that. [Mother] didn’t see it. [Mother] didn’t do anything about it. That’s neglect.... [Mother] sat back and [she] thought by making things worse for [the minor], making boundaries, taking away her iPod is going to straighten things out. [¶] It’s not about [mother], but [she] didn’t think about [the minor]. [Mother] didn’t show a lot of sympathy to [the minor]. [Mother] just saw [the minor] as being a difficult adolescent. And [mother] thought by making the boundaries tighter and tighter, it would make [the minor] behave the way [mother] wanted [the minor] to behave. [¶] And instead [the minor] went off and did her own thing, trying to escape [mother’s] boundaries. [The minor] keeps claiming and she’s been saying this from the beginning of her life..., that she doesn’t have a connection to [mother]. [Mother has] never taken that seriously.
“[Mother] has sat here today and told the most intimate things about [the minor] in open court without any show of emotion. [Mother has] allowed others to read [the minor’s] most private thoughts without any show of emotion. [¶] [Mother] has subjected [the minor] to shame and embarrassment without any show of emotion, without any consideration for her feelings.... [¶] Now, I don’t know if [the minor] actually was intending to commit suicide on the day she locked herself in the bathroom with two knives. But boy that’s really screaming with red flags blowing pay attention. Something bad is happening here. [¶] And [mother’s] attorney wants me to believe that this isn’t neglect, that the government doesn’t have to interfere. Well, the only time [mother has] taken [the minor] for help is when someone has interfered. [Mother doesn’t] do it on [her] own. [Mother] do[esn’t] care enough to do it on [her] own. [Mother] want[s] [the minor] to do and say what [mother] wants her to do and say and [mother doesn’t] care what her feelings are. [¶] It was very evident to me today. [Mother] do[es] not care. [She] gave... letters... to the social worker and... didn’t care who knew about what was in those letters. [Mother] didn’t care what [the minor] had to say about anything. [Mother] never discussed it with [the minor]....
“... And maybe [the minor] is sexually acting out. I don’t know. I don’t know what she’s doing. But I know [mother is] probably the last person in the world who will find out because [the minor] can’t [go] to [mother] and she can’t confide things in [mother] because she cannot trust [mother] to keep them between [mother] and [the minor]. She cannot trust [mother].
“So I’m going to find today that [count] B1 is true as pled and [count] C1 is true as pled.... There’s causation. Certainly the [minor] has been diagnosed with major depression and something that needs to be taken very, very seriously. [¶] The offending parent’s conduct. I [have] just gone through the conduct. And the risk, I can’t return [the minor] to [mother] today. I don’t know what [the minor] would do. Maybe she was just play acting the last time, but I can’t be sure. She’s been hospitalized twice, twice since February. And I can’t take that risk. [¶] I’m not going to put this child at risk by returning her to [mother] because [mother] do[esn’t] understand what’s going on, [mother] do[esn’t] want to understand what’s going on and [the minor] is absolutely right. [Mother] do[esn’t] show a connection to her. [¶]... And you know, I would never say that [mother] do[esn’t] love her but [mother] certainly [has] not acted as a mother to her.”
The juvenile court declared the minor a dependent. It found by clear and convincing evidence under section 361, subdivision (c) that there was substantial danger to the minor if she was returned home and that there was no reasonable way to protect the minor except for removal.
Turning to disposition, the juvenile court ordered conjoint counseling for mother and the minor. But the juvenile court indicated that it would reconsider the order if the minor’s therapist reported that conjoint counseling would cause the minor physical or emotional harm. Mother was granted visitation with the minor, but only in a therapeutic setting at first. The Department was given the discretion to liberalize visitation, and to place the minor with a relative.
Mother appealed.
Subsequent proceedings
Mother’s attorney walked the matter on calendar a few weeks after the jurisdictional and dispositional hearing. He reported that the minor refused to participate in conjoint therapy and did not want to be placed with a relative. The juvenile court indicated that it thought conjoint counseling was necessary and ordered that it begin forthwith.
A month later, the parties reconvened for a progress report. Mother’s attorney complained that nothing had been done with respect to reunification and that the minor was continuing to have problems. She was truant, not following juvenile court orders and was on her third foster home. In addition, she had been arrested for shoplifting and was refusing to be placed with relatives. The minor’s attorney stated that the minor did not want any contact with mother or to participate in reunification services. Also, the therapist reportedly said that contact between the minor and mother would be detrimental. Consequently, the minor’s attorney requested that there be no contact.
The juvenile court stated: “The mother does say everything was hunky-dory before the Department intervened, and it certainly wasn’t. Mother can provide all of these services. Well, if she could have, she should have. And I know she did try, but it didn’t work. It didn’t make [the minor] any more willing to visit her mother or have less behavioral problems or anything like that.
“What I have [here] is two people trying to control this case. I have mother on one side and [the minor] on the other. They are both very controlling personalities and they both want to have total control over this case, and I am not going to let that happen. So I would like to see [the minor] placed with [Mary and Phillip]. I think that should be an excellent placement for her.
“She’s going [to] leave every placement she’s in, she’s not going to get therapy, I don’t believe, that she needs while she’s in foster care because she can run the show while she’s in foster care. And as long as she’s running the show, nothing is going to happen in this case.”
At the next hearing, the Department reported that Mary and Phillip’s home was approved, and that it attempted to place the minor there. But the minor refused, saying she would go “A.W.O.L.” The Department also reported that, at least according to the foster mother, mother had been calling the foster home excessively. The juvenile court once again ordered conjoint counseling and visitation in a therapeutic setting. Mother was ordered to refrain from calling the foster home. Her attorney asked that the minor be placed with Mary and Phillip. The juvenile court replied that it could not force the minor into a placement if she refused to cooperate.
Mother filed a second appeal.
DISCUSSION
I. Standard of review.
Jurisdictional and dispositional findings and orders are upheld if they are supported by substantial evidence. (In re A.M. (2010) 187 Cal.App.4th 1380, 1388; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) In conducting our review, we “do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court’s order and affirm the order even if there is other evidence supporting a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. [Citations.]” (In re A.M., supra, at pp. 1387–1388.) Substantial evidence is “evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.” (Ibid.)
Legal issues are reviewed de novo. (Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1364.) Placement orders will not be disturbed absent an abuse of discretion. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2007) 158 Cal.App.4th 1562, 1568.)
II. The jurisdictional findings under section 300, subdivision (b).
A child may be declared a dependent if she “has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child... or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment.” (§ 300, subd. (b).) A juvenile court must find: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco M.); (In re Precious D. (2010) 189 Cal.App.4th 1251, 1254 (Precious D.) [in “light of the dependency statutory scheme and federal due process principles, parental unfitness or neglectful conduct must be shown in order to assert dependency court jurisdiction under that part of section 300[, subd.] (b) providing for jurisdiction based on the parent’s ‘inability... to adequately supervise or protect the child’”].) Regarding the third element, it must be shown that the risk exists at the time of the jurisdictional hearing. (In re B.T. (2011) 193 Cal.App.4th 685, 692 (B.T.).)
Mother argues that there was insufficient evidence to support the juvenile court’s ruling under section 300, subdivision (b). We agree.
At the time of the jurisdictional hearing, mother held an undergraduate degree in nursing and was studying to obtain a masters degree. She was providing for all of the minor’s basic necessities such as food, shelter and clothing. In addition, she imposed rules and boundaries on the minor. The record reveals that mother was concerned for the minor’s physical and mental well-being. Mother willingly took the minor to the hospital and therapy, she spoke to the minor about safe sex practices, had the minor checked for sexually transmitted diseases, and filed a missing person report when the minor left home on February 23, 2010. Significantly, mother was cooperative with the Department and the police and never stated any objection to participating in counseling or taking the minor to counseling. These facts suggest that mother is capable and willing to supervise and protect the minor.
The next question is whether mother was negligent because she failed to realize that the minor might physically harm herself and, as a result, failed to ensure that the minor received appropriate treatment.
“‘Negligence is either the omission of a person to do something which an ordinarily prudent person would have done under given circumstances or the doing of something which an ordinarily prudent would not have done under such circumstances. It is not absolute or to be measured in all cases in accordance with some precise standard but always relates to some circumstance of time, place and person.’ [Citation.]” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 831, p. 48) In our view, the evidence does not establish negligence with respect to failure to protect the minor from future physical harm.
The minor never hurt herself. Prior to February 26, 2010, she never threatened self-harm, or suicide. Nor did any of the school or church counselors who worked with the minor suggest to mother that the minor was at risk of suicide, or even that she required different therapy. Notably, the juvenile court did not have the benefit of a psychiatrist’s assessment of the case history, nor an assessment of mother and the minor. While there was evidence that the minor’s grades had dropped and that she was stealing, defiant and hard to control, those facts would not have alerted a reasonably prudent person in mother’s position that the minor was at risk of hurting herself physically and therefore was in need of professional intervention. After February 26, 2010, mother fully cooperated with the advice of professionals and was willing at all times to ensure that the minor receive the treatment she needed.
In our view, the juvenile court would have been well served by an Evidence Code section 730 evaluation. As explained by Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202 (Laurie S.), expert evidence at the jurisdictional phase of a case proceeding under section 300, subdivision (c) is not necessary if an “assessment can be made within ordinary experience.” But if a subject is sufficiently beyond ordinary experience, an expert may be required. (Laurie S., supra, at p. 202.) Here, the dynamic between mother and the minor is so complex, the ramifications of their conflict may well be outside ordinary experience.
We acknowledge that the minor was diagnosed with major depression. But it is too speculative to infer that mother should have noticed the major depression, perceived that there was a risk that she might harm herself physically and sent her for some sort of treatment. The record is insufficiently developed for a trier of fact to understand and evaluate when the major depression began, how it manifested and whether the minor kept it hidden. It is also insufficiently developed to establish when and if she became a danger to herself physically. In other words, the minor’s diagnosis with major depression is not enough by itself to establish negligence. Notably, the minor testified on April 6, 2010, that she had been feeling depressed for a couple of months. In other words, according to the minor, her depression began in February 2010. When coupled with other evidence, her testimony suggests that mother noticed a problem with the minor at about the time the depression started. This prompted mother to meet with school officials and contemplate treatment.
The Department takes a different view. It argues that mother failed to obtain appropriate and timely mental health services for the minor, and that her neglect placed the minor at substantial risk of physical harm.
We are directed to a series of facts. First, father died and mother left the minor in Kenya for five years with Mary and Phillip. In 2010, the minor told a social worker: “I loved living with Mary and Phillip.... [Mary] is ‘amazing’. ‘They are my parents....’ The emotional connection is not there with [mother].” The Department received referrals in 2004 and 2006 because mother hit the minor with a curtain rod after learning that the minor stole. These facts are undisputed. Alone, these facts do not establish the neglect at issue under section 300, subdivision (b). Implied in the Department’s argument and the juvenile court’s findings is that mother was neglectful because she never addressed the minor’s sense of abandonment. But that misses the point. Neither the Department nor the juvenile court explained when mother was supposed to realize that the minor was suicidal. We acknowledge that this is a very difficult case, and the minor is clearly troubled. It is precisely for that reason, however, that the Department needed to double its efforts to dissect the case history and perhaps obtain the opinion of mental health professionals to shed light on the root of the minor’s troubles and excuse or blame mother’s inaction.
Next, the Department states that the minor exhibited difficult behavior since she was 13. According to the Department, “mother did nothing to ensure that her daughter’s mental health needs were being addressed through therapy or other services. Of particular note was the fact that [the minor] was expelled from private school in June 2009, for lying, cheating, and stealing, however, mother did not bother to enroll her in any counseling after that occurrence.” Simply put, the Department did not sufficiently develop the facts to support its assertion. The minor saw various counselors at school and church, and there is no evidence as to whether any of those counseling sessions were prompted by mother. In other words, mother may have encouraged or arranged counseling, but the record is silent. It is therefore speculative to opine as to her involvement in the minor’s mental health care. We note that the Department did not interview any of the minor’s pre-2010 counselors, and there is no evidence that they thought the minor was a danger to herself or that they thought mother should have arranged for different care. In addition, mother and the minor received services in 2006, and the minor received therapy. There is no evidence regarding what developed during the minor’s therapy. Nor is there evidence as to what mother learned during that case and whether she altered her parenting as instructed. One thing we do know is that mother was told that the way to punish the minor is to take things away from her. The evidence shows that mother took that advice.
In the jurisdiction/disposition report, the minor was quoted as saying that she did not attempt to kill herself, but she thinks about it all the time and wants to die. The Department suggests that this fact supports jurisdiction. There is no evidence mother knew about the minor’s suicidal ideation until the meeting with the minor’s assistant principal in late February 2010. Mother’s first inclination upon being told her daughter was suicidal was to have the minor hospitalized. But mother was talked out of it by a school psychologist, who advised mother to take the minor to a crisis center. Mother did so. We fail to see how mother’s conduct can be categorized as being neglectful of the minor’s physical well-being.
The Department suggests that mother’s only response to the minor’s troubles was to say she was defiant and take away her possessions. According to the Department: “Mother’s insistence that [the minor] was merely defiant demonstrated mother’s inability or unwillingness to respond to her daughter’s difficulties in a loving, sympathetic, and appropriate manner. Disciplining her daughter by taking things away from her was clearly inadequate to meet [the minor’s] mental health needs.” This view of the facts is not supported by the record. It is true that the mother claimed the minor was defiant. But mother expressed willingness to participate in counseling and obtain therapy for the minor. Mother wanted to take the minor to a hospital after meeting with the assistant principal. As instructed, mother made appointments for the minor after she was discharged from BHC-Alhambra.
Mother’s cooperation with treatment is discounted by the Department on the theory that the treatment was initiated by third parties, and that it was too late to avoid a crisis. The Department’s view of the facts is skewed. It was mother who initiated contact with the minor’s assistant principal and counselors after becoming concerned about the minor. It was mother who first suggested that the minor be hospitalized. The inference is that mother would have taken the minor to a hospital if the school psychologist had not suggested a different plan. But even if mother and third parties became alarmed at the same time, and even if third parties prompted services, we could not fault mother. She was cooperative, and all this scenario suggests is that mother and the third parties were on the same page.
To be accurate, we quote the Department’s next point. It averred: “Mother... demonstrated her lack of concern about [the minor’s] emotional well-being by revealing personal and embarrassing information regarding [the minor] during the court proceedings, apparently without any emotion.” We cannot agree. If mother had withheld any relevant facts from the juvenile court, we would question her motives and concern for the minor. But she did not withhold. She did what any responsible parent should do, which was disclose any and all facts that helped the juvenile court assess the case. Thus, we do not glean from mother’s testimony that she would fail to protect the minor from physical harm.
The Department contends that mother was controlling, which was shown by her repeated phone calls to Thomas during the minor’s placement with Thomas. We are referred to an interim review report dated June 15, 2010. Indeed, that report states that mother repeatedly called Thomas to ask about the minor, and that Thomas viewed the phone calls as harassment. This evidence, however, was not presented at the jurisdictional hearing. Moreover, it does not establish that mother was neglectful of the minor’s physical well-being prior to detention.
Mother testified that on February 27, 2010, the minor did not seem depressed before she locked herself in the bathroom. When asked why she thought the minor was so angry, mother opined that it was because she set rules that the minor did not want to follow, and mother would not allow the minor to get a job and have a boyfriend. The Department implies that mother’s testimony establishes neglect because she had no insight into the minor. The question is whether she should have had insight. On this record, it is impossible to know. Assuming she did not have insight, mother nonetheless recognized that the minor might be a danger to herself and acted responsibly by calling the Sheriff’s Department.
Last, the Department argues that mother caused the minor’s major depression because mother was controlling, bought the minor clothes that were too big and told her that she was fat. As we discuss in part III of the discussion, post, this evidence supports jurisdiction under section 300, subdivision (c). Nonetheless, we conclude that it does not support jurisdiction under section 300, subdivision (b) it does not establish a past failure to supervise or protect against physical harm. Nor is there an indication in the record that neglect will continue (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1389), and that mother will fail to properly supervise or protect the minor in the future with respect to potential physical harm.
III. The jurisdictional findings under section 300, subdivision (c).
Another way a child may be declared a dependent is if she “is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. No child shall be found to be a person described by this subdivision if the willful failure of the parent or guardian to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available.” (§ 300, subd. (c).) According to the court in In re Alexander K. (1993) 14 Cal.App.4th 549, 557, the statute applies “in two situations: (1) when parental action or inaction causes the emotional harm, i.e., when parental fault can be shown; and (2) when the child is suffering serious emotional damage due to no parental fault or neglect, but the parent or parents are unable themselves to provide adequate mental health treatment.”
The minor’s two hospitalizations and diagnosis with major depression establish that she suffers from serious emotional damage.
The interviews, testimony and letters considered by the juvenile court provided substantial evidence that mother caused the minor’s major depression. She used corporal punishment on the minor in 2005 and 2006, called the minor fat, bought her clothes that were too big, and otherwise destroyed the minor’s self-esteem and triggered her suicidal ideation. As a result, the minor began dwelling on suicide and thought about hurting herself if returned to mother’s care.
Mother contends that the juvenile court had a sua sponte duty to dismiss the amended petition because Kuper, the investigator who testified at the jurisdictional and dispositional hearing, admitted that she did not speak to many of the relevant witnesses. Mother points out that section 332 required the Department to verify the allegations in the amended petition, and that section 333 requires a juvenile court to dismiss a petition if it is not verified. The problem for mother is that the amended petition was verified by Nancy Bryden (Bryden), not Kuper. Mother fails to explain why Bryden’s verification was defective. Nor did mother cite any law establishing that a juvenile court has a sua sponte duty to apply section 333.
Regarding the merits, mother points out that there is evidence that mother cared about the minor and took steps to assist the minor with her behavior. But that evidence does not negate the evidence of emotional abuse provided by the minor. Next, mother argues that there is evidence that the minor was motivated to escape mother’s rules. For example, mother adverts to the letter to the minor coaching her how to get herself removed from home. While it is true that the record contains evidence suggesting that the minor is manipulating mother, the Department and the juvenile court, we are required by the substantial evidence rule to ignore evidence that conflicts with other evidence that supports the challenged ruling.
Mother suggests that In re Brison C. (2000) 81 Cal.App.4th 1373 (Brison C.) undermines the juvenile court’s finding of jurisdiction. We cannot concur. In Brison C., the court concluded that there was insufficient evidence that the child was suffering from serious emotional damage. Rather, he was healthy and performing at or above grade level at school. He did not exhibit any behavioral abnormalities or difficulties while in shelter care or foster care. He loved his mother and was happy to see her. He was affectionate toward her and they interacted well together. The only indication of emotional difficulties was the child’s deep dislike and fear of his father. There was evidence that the father was physically and verbally abusive. The dislike and fear of his father, however, did not establish that the child was suffering from serious emotional damage. (Id. at p. 1380.) The case at bar is distinguishable because the minor was diagnosed with major depression.
IV. Fairness of the jurisdictional hearing.
Mother contends that she was denied a fair hearing because the juvenile court did not allow her to elicit testimony to show that the minor’s depression and resulting attempt to commit suicide potentially came from her fear that she had contracted a sexually transmitted disease, and that her motive behind making false accusations of physical abuse was her defiant behavior and desire to get out of mother’s home rather than conflict caused by mother. In addition, mother contends she was denied a fair hearing because the juvenile court appeared biased.
These contentions lack merit.
“[P]arties to a dependency proceeding have a statutory due process right to cross-examine and confront witnesses. [Citations.]” (In re Amy M. (1991) 232 Cal.App.3d 849, 864 (Amy M.).) In addition, parents must be afforded an opportunity to be heard. (Ibid.) Still, a juvenile court is obligated to “control all proceedings with a view to quickly and effectively ascertaining the jurisdictional facts and all information relevant to the present condition and welfare of the child.” (Cal. Rules of Court, rule 5.534(a).) Courts at the trial level are “vested with the discretion to exclude evidence which may unduly consume time.” (Wagner v. Benson (1980) 101 Cal.App.3d 27, 36.) In addition, courts “shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.” (Evid. Code, § 765.)
While the minor was testifying, the mother’s counsel asked if the minor was worried about her blood test. She said, “No.” Then she was asked if she remembered writing in a letter that she was worried. She answered in the negative. Mother’s counsel asked whether the minor was worried that she might have contracted a sexually transmitted disease. The juvenile court did not allow the question because it had been answered twice. Mother’s counsel did not make an offer of proof regarding further questions.
Later in the hearing, mother’s counsel asked the minor questions about her refusal to go to school on February 24, 2010. The juvenile court sustained a relevance objection, at which point mother’s counsel stated that he was trying to elicit testimony regarding the minor’s defiant behavior. It was suggested that mother’s counsel simply ask if the minor refused to go to school. Instead, he asked if she refused to wear clothing mother wanted the minor to wear to school. The minor responded, “Yes.” At a different point, mother’s counsel asked the minor about refusing to follow rules and ditching school while in foster care. The juvenile court sustained relevance objections. Mother’s counsel stated that he was trying to show that the minor had a plan of getting out of mother’s house and away from her rules. The juvenile court opined that mother’s counsel was simply showing that mother was incapable of meeting the minor’s needs.
Mother’s counsel asked mother whether counselors at the crisis center asked about her hitting the minor. The juvenile court sustained a relevance objection. Mother’s counsel said the question was relevant to the minor’s credibility. The Department moved to strike. The juvenile court did not rule. When mother was asked if she was aware that the minor had been moved from her foster home, the juvenile court sustained a relevance objection. Mother’s counsel stated: “As an offer of proof, your honor, I believe that the police were even called out to the house.” The juvenile court asked, “What does that have to do with the petition?” Mother’s counsel replied: “Well, I think it goes to the whole motive of—that was set forth in that letter of getting out of the mother’s house.” He explained that the minor devised different ways to escape mother. The juvenile court’s response was this: “Okay.” The juvenile court sustained a relevance objection when mother was asked if she was ever told that the minor had come home late from the foster home. In addition, the juvenile court indicated it would not allow any questions in that vein.
In our view, these rulings did not deny mother a fair trial. She was given the opportunity to cross-examine the minor regarding many topics. In addition, she was given an opportunity to be heard not only through her testimony, but also through her statements contained in the Department’s reports. There was sufficient evidence in the record that the minor was being manipulative and simply trying to get out of mother’s home. The juvenile court could have found in mother’s favor. Instead, it made express and implied findings of fact that the minor was suffering serious emotional damage and that mother was the cause. We note that mother failed to establish that improper rulings on evidentiary objections can ever amount to the denial of a fair trial, nor did she establish that any of the specific rulings were error. Finally, even if there was a due process violation with respect to the juvenile court’s evidentiary rulings, we would conclude that the violation was harmless beyond a reasonable doubt. (Amy M., supra, 232 Cal.App.3d at pp. 867–868.)
We now turn to mother’s second claim.
She argues that the juvenile court’s harsh criticism of her as a parent gave the appearance that it held preconceived ideas based on stereotypes of parent-child relationships. She argues that we must reverse and remand the case to a different judge. But the law does not support her argument.
Mother relies on In re Marriage of Iverson (1992) 11 Cal.App.4th 1495 (Iverson), Catchpole v. Brannon (1995) 36 Cal.App.4th 237 (Catchpole), and Hernandez v. Paicius (2003) 109 Cal.App.4th 452 (Paicius). Each case contained language suggesting the appearance of bias is enough for reversal. In making her argument to us, mother seizes upon that language. The problem for mother is People v. Freeman (2010) 47 Cal.4th 993 (Freeman). The court stated that “notwithstanding language in [Iverson, Catchpole, Paicius and Hall v. Harker (1999) 69 Cal.App.4th 836 (Hall)] about the appearance of bias, the facts amounted to a showing of actual bias based on comments by the judges about women (Catchpole, Iverson), lawyers (Hall) and noncitizens (Paicius) and should be understood in the context of those facts. To the extent that these opinions contain language inconsistent with our analysis in this case, that language is disapproved. [Citations.]” (Freeman, supra, at pp. 1006–1007, fn. 4.) Pursuant to Freeman, a party must demonstrate a probability of actual bias. (Id. at p. 1006.) Mother failed to develop an argument that satisfies Freeman.
On this record, we do not perceive grounds for reversal. The juvenile court made its statements about mother in connection with its jurisdictional ruling. Nothing in its comments expressly disclosed that the juvenile court was relying on stereotypes rather than the evidence.
V. Placement.
Mother contends that the juvenile court’s placement ruling must be reversed. We cannot concur.
When a child is removed from her parent’s physical custody, “preferential consideration shall be given to a request by a relative of the child for placement.” (§ 361.3, subd. (a).) The juvenile court must consider, among other things, the best interests of the child, including the child’s emotional needs, and the wishes of the parent, the relative and child, if appropriate; the desire of the relative to care for the child; and the ability of the relative to provide the child with a safe, secure, and stable environment, to control the child, to protect the child and to facilitate court-ordered reunification efforts with the parents. (§ 361.3, subds. (a)(1)-(a)(7).) As defined by statute, preferential consideration means that the relative seeking placement shall be the first placement to be considered and investigated. (§ 361.3, subd. (c)(1).) “If the court does not place the child with a relative who has been considered for placement pursuant to this section, the court shall state for the record the reasons placement with that relative was denied.” (§ 361.3, subd. (e).)
We perceive no grounds for reversal. The juvenile court ordered the Department to place the minor with Mary and Phillip, which indicates the juvenile court’s awareness of the section 361.3 preference. Their home was approved. However, the minor refused to live with them and said she would go “AWOL.” The Department reported that due to the minor’s depression, it was concerned that if the minor was on the streets and not taking her medication, she would be at greater risk. Also, the Department noted that the minor was receiving wraparound services with a therapist visiting her in the foster home. If the minor moved, the therapist could not continue working with her. The juvenile court changed its placement order and explained that it could not force the minor to live with Mary and Phillip. Tacitly, the juvenile court considered the minor’s best interests. Given the minor’s history, fragile emotional state and history of running away from places she does not like, we cannot find fault. Placing her with Mary and Phillip posed a risk of further emotional damage.
Mother contends that the juvenile court wrongly interpreted the law and believed that it could not force the minor to live with Mary and Phillip. In mother’s view, this establishes an abuse of discretion. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298 [an abuse of discretion is established if a trial court does not rule within the bounds of legal principles].) We perceive the juvenile court’s comments differently. It did not indicate a belief that it lacked the power to enter a particular placement order. Rather, in colloquial terms, it simply found that placing the minor with Mary and Phillip was unwise and impractical.
To be fair, the juvenile court’s ruling was not free from deficiency. In our view, the reason it provided for denying placement with Mary and Phillip did not fully satisfy section 361.3, subdivision (e) because it did not advert to any of the considerations set forth in section 361.3, subdivision (a). But any error was harmless because it is not reasonably probable that the juvenile court would have decided in mother’s favor had it otherwise expounded upon its reasoning. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) The record clearly establishes that the juvenile court did not believe that placement with Mary and Phillip would work.
Moving to a new point, mother tacitly argues that the juvenile court’s decision was not in the minor’s best interests. At one of the hearings, the juvenile court opined that the minor would not get therapy if she was in foster care and that placement with Mary and Phillip was an excellent idea. Seemingly, mother suggests that the juvenile court’s assessment was immutable. It was not. At the subsequent hearing, the juvenile court learned of the minor’s objections and had the benefit of the interim review report prepared by the Department. The juvenile court was vested with the discretion to reconsider its order in light of new facts.
Bringing her argument to a close, mother argues that the placement order must be reversed because the juvenile court improperly delegated judicial power to the minor. (In re S.H. (2003) 111 Cal.App.4th 310, 318, fn. 11 (S.H.) [“Under the separation of powers doctrine judicial powers may not be completely delegated to, or exercised by, either nonjudicial officers or private parties”].) We have a brief response. The juvenile court made the decision, not the minor. That it considered the minor’s objections does not amount to a delegation of power.
VI. Visitation.
Mother argues that the juvenile court improperly delegated authority to third parties to establish the duration and frequency of visitation. Even though mother raises this issue for the first time on appeal, we entertain the argument because it raises a matter of public interest and is purely legal. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73.)
Visitation is an integral part of a reunification plan. (S.H., supra, 111 Cal.App.4th at p. 317.) A parent cannot be denied visitation unless it would be harmful to the child. (Id. at p. 317, fn. 9.) Furthermore, a juvenile court is obligated “to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. [Citations.]” (Id. at p. 317.) Some cases hold that it is permissible to allow a third party to determine the time, place and manner of visitation. But the duration and frequency of visitation must be established by the juvenile court. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 (Rebecca S.); In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) Other cases take a more fluid approach. S.H. held that a juvenile court need not always specify the frequency or length of visits, but that it must establish a framework within which visitation will occur. In other words, a third party cannot be given de facto veto power. (S.H., supra, at p. 319.) S.H. suggested that the juvenile court can order a minimum number of visits per month and impose essential conditions but allow the Department to organize other details. For example, a juvenile court could order “that here be two monitored visits per month to take place at the Department’s offices or another neutral setting and that each visit will last, at most, for two hours, leaving to the Department and the children to determine when the visits will actually occur within the month and whether any particular visit would last for the full two hours or some shorter period.” (Id. at p. 319, fn. 13.) The court in In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374, explained that the separation of powers doctrine is violated only when a “visitation order delegates to the probation office or county welfare department the absolute discretion to determine whether any visitation occurs.”
Here, the juvenile court ordered that visitation in a therapeutic setting begin forthwith and said nothing more. In our view, the order was improper under either line of cases discussed above. The order obligated the therapist or the Department to schedule an initial visitation but all other particulars—time, place, manner, duration and frequency of visitation—were left open-ended. As a de facto result, the therapist, the Department and the minor were vested with absolute discretion to determine the nature and extent of the first visitation as well as the nature, extent and actual occurrence of future visitation. By not sufficiently defining mother’s visitation, the order had the effect of delegating authority to third parties. The question remains, however, what must happen on remand. Due to the complex and delicate nature of this case, we believe flexibility is important and the approach of S.H. is better suited to this case than the approach of Rebecca S. Therefore, the juvenile court shall enter an order designed to ensure a minimum amount of visitation but otherwise allow the Department or therapist the flexibility to determine the particulars of each visit.
VII. Conjoint counseling.
Mother contends that we should reverse the order for conjoint counseling for the same reason that we reverse the visitation order. But we have not been cited to any case law supporting her request. Consequently, we perceive no error and leave the order for conjoint counseling undisturbed.
DISPOSITION
The jurisdictional findings and related order declaring the minor a dependent under section 300, subdivision (b) are reversed. The jurisdictional findings and related order declaring the minor a dependent under section 300, subdivision (c) are affirmed. The placement order and conjoint counseling are also affirmed. The visitation order is reversed and remanded with directions for the juvenile court to define mother’s visitations rights consistent with S.H.
We concur: BOREN P. J., CHAVEZ, J.