Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Los Angeles County. No. CK 77296 D. Zeke Zeidler, Judge.
Law Office of Lisa A. DiGrazia and Lisa A. DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
Kimberly A. Knill, under appointment by the Court of Appeal, for the child.
GRIMES, J.
The trial court terminated dependency jurisdiction with a family law order (exit order) and restraining order granting mother legal and physical custody of four-year-old D.U. and ordering no visits or contact with V.U., who is her presumed father, although he is not her biological father. The court had declared D.U. a dependent of the court after finding V.U. (father) had sexually abused her. Father appeals, claiming the no-contact orders violated his constitutional right to due process because the denial of visitation is the legal equivalent of an order terminating his parental rights. Father also contends the trial court abused its discretion by failing to consider two declarations of paternal relatives when issuing its exit order, denying him contact with D.U., and failing to give guidance to the family law court for future modification of the juvenile court’s exit order. Finding no violation of constitutional rights or abuse of discretion, we affirm the trial court’s orders.
BACKGROUND
Mother and father were married from April 2001 until September 2006, when mother filed for divorce. D.U. was born in March 2005. A paternity test established that V.U. is not D.U.’s biological father. After September 2006, mother cut off father’s contact with D.U., who was then 18 months old. The family law court determined V.U. is the child’s presumed father and ordered V.U. was to have weekend visitation with his daughter beginning in March 2007. In April 2008, the family law court entered a stipulated order granting joint legal custody of D.U. to mother and father, with mother to have primary physical custody and father to have visitation rights.
D.U.’s preschool teacher made a sexual abuse referral to the Department of Children and Family Services in April 2009. During the Department’s investigation, D.U. told a social worker that father took off her panties during her visits with him and touched her private parts with his hand and used a “stick” to “hit” her in the vagina and anus, hurting her “a lot.” Father told D.U. not to tell mother or anyone else. D.U. reported that she saw father naked and described his private parts to the social worker. The social worker interviewed numerous other witnesses, whose detailed statements were included in a detention report. Among other things, mother reported that she noticed a big change in D.U.’s emotional well-being soon after D.U. began to have overnight visits with father. D.U. began to have nightmares, she wet her panties, and mother caught her touching her vagina and engaging in other unusual behaviors that the child never displayed before her overnight visits with father. The juvenile court ordered D.U. detained from father, ordered no visits with father, and released D.U. to her mother, against whom the Department made no allegations of abuse or neglect.
Mother applied for an ex parte restraining order in June 2009, and the juvenile court issued its order that day after a hearing at which father testified. The court ordered father was to have no visits with D.U. and was to stay 100 yards away from her and mother, their home, mother’s workplace, D.U.’s school, and mother’s vehicle.
The court adjudicated the petition over four days in late October 2009. Numerous exhibits were admitted into evidence, and father and mother both testified at length. The court sustained the following allegations pursuant to Welfare and Institutions Code section 300, subdivision (b):
“The child [D.U.’s] father, [V.U., ] sexually abused the four year old child in that the father fondled the child’s vagina and buttocks, touched the child’s vagina and anus with a stick and/or his penis, causing pain, the father exposed the father’s penis to the child, and on the child’s visits with the father the father immediately removed the child’s underwear when the child entered the father’s home. The child is afraid of the father and does not want to have contact with the father due to the father’s ongoing sexual abuse of the child. The father instructed the child not to disclose the father’s sexual abuse of the child to the child’s mother. Such sexual abuse of the child on the part of the father endangers the child’s physical and emotional health, safety and well being and places the child at risk of physical and emotional harm, damage, danger, sexual abuse and failure to protect.”
The court sustained the following additional allegations pursuant to Welfare and Institutions Code section 300, subdivision (d):
“The child [D.U.’s] father, [V.U., ] sexually abused the four year old child in that the father penetrated the child’s vagina and anus with a stick. The father struck the child’s vagina with a stick. The father fondled the child’s vagina and buttocks. On prior occasions, the father exposed the father’s penis to the child. On the child’s visits with the father the father immediately removed the child’s underwear when the child entered the father’s home. The child is afraid of the father and does not want to have contact with the father due to the father’s ongoing sexual abuse of the child. The father instructed the child not to disclose the father’s sexual abuse of the child to the child’s mother. Such sexual abuse of the child on the part of the father endangers the child’s physical and emotional health, safety and well being and places the child at risk of physical and emotional harm, damage, danger, sexual abuse and failure to protect.”
After making its jurisdictional findings, the court proceeded to disposition. The court announced its tentative decision to terminate jurisdiction with an exit order granting mother full legal and physical custody of D.U., maintain the restraining order, and order father to have no contact with D.U. The court inquired if any party wished to offer additional evidence. All parties declined except father, who offered no additional evidence but argued the court should order reunification services for father. The court was not persuaded and ordered the care, custody and control of D.U. taken from father. The court entered an exit order granting legal and physical custody to mother, ordering father was to have no visitation. The court also issued a restraining order in the form previously entered in June 2009. The court specified that its exit and restraining orders were to be filed in the family law action as well as in the dependency proceedings, as required by Welfare and Institutions Code section 362.4. The court then terminated dependency jurisdiction and ordered any requests for modification of its orders must be brought in the family court case under Welfare and Institutions Code section 302, subdivision (d), or section 726.5, subdivision (c).
DISCUSSION
On appeal, father does not challenge the jurisdiction findings, the denial of reunification services, or termination of jurisdiction. Father appeals only from the disposition and restraining orders preventing visitation with D.U. Father contends the no-visitation orders violated his constitutional right to due process because ordering no visitation is tantamount to termination of his parental rights. Father also argues the trial court abused its discretion in denying him visitation, including by failing to consider two declarations of paternal relatives. He also argues the trial court’s crossing out the words “treatment for perpetrators” on an addendum to the exit order conveyed that no amount of treatment could ever make it safe for father to have visitation with D.U. in the future.
1. The Trial Court Did Not Deprive Father of His Right to Due Process.
We find no deprivation of father’s right to due process of law. At all times, father was given notice and an opportunity to be heard, and he was heard, at great length and over the course of many months and many hearings. Father appeared and was represented by court-appointed counsel throughout the dependency proceedings. He was permitted to call witnesses and testify in his own behalf. The juvenile court applied the correct standard of proof in its fact findings. In making its jurisdiction and disposition findings and orders, the court correctly applied the clear and convincing evidence standard. Father was afforded all the rights demanded by the constitutional requirement of due process. (Santosky v. Kramer (1982) 455 U.S. 745, 753).
The court’s no-visitation orders are not the legal equivalent of an order terminating parental rights. The juvenile court was never asked to consider termination of parental rights and never purported to do so. To the contrary, in its exit order, the juvenile court specifically declared V.U. is the presumed father as determined by the family law court. Since the juvenile court terminated jurisdiction over D.U., the court precluded any possibility of terminating parental rights based on the facts adjudicated in this action. Moreover, the juvenile court’s exit order expressly stated that it could be modified in family law court on a showing of “a significant change of circumstances, ” if a modification of the order “is in the best interest of the child pursuant to Welfare & Institutions Code Section 302(d).” (In re Marriage of David & Martha M. (2006) 140 Cal.App.4th 96 [where juvenile court terminates jurisdiction with a dissolution of marriage case pending, the juvenile court’s custody order may be modified in family law court only if there is a significant change of circumstances and modification of the order is in the best interests of the child].)
Welfare and Institutions Code section 302, subdivision (d) applies whenever a juvenile court terminates jurisdiction pursuant to Welfare and Institutions Code section 362.4. The latter section provides that when the juvenile court terminates jurisdiction over a minor child and a family law case is pending, the juvenile court’s custody and visitation orders shall become part of the family law file. If no family law case is pending, the juvenile court’s order may be used as the sole basis to open a family law case to seek further orders concerning custody of the child. We do not know if the family law proceedings are still pending between D.U.’s mother and presumed father. There is no final judgment in the divorce proceedings in the record; the last family law court order is the stipulated order of April 2008. Whether or not the family law case is still pending, pursuant to Welfare and Institutions Code section 362.4, V.U. may seek modification of the juvenile court’s orders.
Father’s citation of authorities establishing a parent’s fundamental right to retain the care, custody, management, and companionship of his own child, free of intervention by the government, is not particularly helpful, because none of the cited authorities establishes that the parent-child relationship may not be disrupted where there are strong reasons for doing so to protect the best interests of the child. (Santosky v. Kramer, supra, 455 U.S. 745 [parental rights may be terminated on a showing of clear and convincing evidence to support the order]; In re S.H. (2003) 111 Cal.App.4th 310, 317-318 [juvenile court has power to decide whether or not visitation will occur]; In re Julie M. (1999) 69 Cal.App.4th 41 [parent’s liberty interest in the companionship of child cannot be maintained at expense of child’s well-being].)
2. The Trial Court Did Not Abuse Its Discretion.
Having found no deprivation of father’s due process rights, we now turn to his claim the court abused its discretion in ordering no visitation. “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Father argues the court abused its discretion by sustaining objections to the admission of two declarations of paternal relatives that he offered at the combined jurisdiction and disposition hearing. Initially, we disagree with the Department’s argument that father forfeited the right to assert this claim of error on appeal. Father offered the declarations of a paternal uncle and paternal grandmother that had been filed in the family law proceedings in February 2007, two and a half years before the jurisdiction and disposition hearing. D.U.’s paternal grandmother stated in her declaration that she and other paternal relatives loved D.U. even though she is not V.U.’s biological daughter, and that V.U. was a responsible father who always offered his best under the trying circumstances of mother having denied visitation to father and his relatives. Similarly, the paternal uncle testified to V.U.’s devotion, love, care and support of D.U. during the first 18 months of her life.
The court did not abuse its discretion in finding both declarations were irrelevant to the adjudication and disposition proceedings. The trial court reasonably concluded that evidence of father’s relationship with D.U. during the first 18 months of her life was irrelevant to the issues the juvenile court had to decide: whether in the years since then, father had sexually abused his daughter and whether there was a present risk of substantial danger to her physical and mental health while in the care of father.
We also find the court did not abuse its discretion in ordering father to have no contact and no visitation with D.U. Pursuant to Welfare and Institutions Code section 361.2, subdivision (b)(1), the court was empowered to remove D.U. from father and place her with mother, a nonoffending parent; order the nonoffending parent to become legal and physical custodian of the child; and terminate jurisdiction over the child. That statute also provides, “The court may also provide reasonable visitation by the noncustodial parent.” Manifestly, the word “may” to describe the court’s power to order visitation in Welfare and Institutions Code section 361.2, subdivision (b)(1) means the juvenile court has discretion to determine what visitation may be reasonable or to order no visitation at all.
Father does not contend on appeal that no substantial evidence existed to support the court’s findings that he “fondled the child’s vagina and buttocks, touched the child’s vagina and anus with a stick and/or his penis, causing pain, the father exposed the father’s penis to the child, and on the child’s visits with the father the father immediately removed the child’s underwear when the child entered the father’s home. The child is afraid of the father and does not want to have contact with the father due to the father’s ongoing sexual abuse of the child.” It is well established that where substantial evidence supports a juvenile court’s findings that a parent has physically or sexually abused his or her child, the court does not abuse its discretion by ordering no visitation with the offending parent. (E.g., In re Mark L. (2001) 94 Cal.App.4th 573, 581; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 837-839).
Finally, we reject father’s contention that the court abused its discretion in the manner by which it modified the form addendum to the exit order entitled “Reasons for No or Supervised Visitation.” The form addendum had boxes that could be checked next to language describing whether the order was made because a parent had failed to make substantial progress in court ordered treatment. The juvenile court crossed out the boxes and language regarding a parent’s failure to complete or to make substantial progress in court ordered programs, which was proper since the court had not ordered reunification services for father. The language next to one box stated, as one choice to explain a no-visitation order due to a parent’s failure to complete or progress in court ordered treatment: “Sex abuse treatment for perpetrators.” The trial court struck the words “treatment for perpetrators” and wrote by hand words before and after the printed words “sex abuse.” The modified language of the form addendum read: “No visitation is ordered for: [D.U.]... [¶]... [¶]because of sex abuse and child’s fear of father.”
No reasonable person would understand the court to have intended to convey anything other than what it said, that the reason it ordered no visitation for father was because of sex abuse and D.U.’s fear of father. Certainly, no reasonable person would understand the modification of the form language was meant to convey that father was beyond rehabilitation. Further, we find unpersuasive father’s argument that the striking of a phrase from the form addendum made it appear that visits with D.U. would never be in her best interest. As mentioned above, the trial court’s exit order expressly stated that it could be modified in family law court on a showing of “a significant change of circumstances, ” if a modification of the order “is in the best interest of the child pursuant to Welfare & Institutions Code Section 302(d).”
For the same reason, we find no merit in father’s argument that the juvenile court failed to give the family law court any guidelines for modification of the exit order in the future. The exit order specifically recited the statutory authority for modifying the order in the future and quoted the statutory standard justifying any future modification. In any event, it is well established that a juvenile court’s exit order “is in the nature of pendente lite orders in family law” and “cannot be equated with permanent family law custody order and visitation orders.” (In re John W. (1996) 41 Cal.App.4th 961, 973.)
DISPOSITION
The juvenile court’s orders are affirmed.
WE CONCUR: RUBIN, ACTING P. J., FLIER, J.