Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ09012236
Simons, J.
April R. (mother) appeals from an order suspending visitation with her son, Joshua D. Mother contends the court: (1) abused its discretion by suspending visitation; (2) erred by “denying [her] immediate visitation in a therapeutic setting”; (3) impermissibly delegated judicial authority to Joshua’s therapist to determine whether visitation should occur; and (4) violated the notice requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. (ICWA).
Mother appealed from the jurisdiction and disposition orders in A125111 and from the order suspending visitation in A125487. We consolidated the appeals. In her opening brief, however, Mother does not challenge the jurisdiction or disposition orders. Joshua’s presumed father, Gary D., (father) is not a party to this appeal and is mentioned only where relevant to the issues raised in mother’s appeal. (In re V.F. (2007) 157 Cal.App.4th 962, 966, fn. 2, superseded by statute on other grounds, as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58.)
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Detention and Jurisdiction
Joshua was born in 1999. In March 2009, the Alameda County Social Services Agency (Agency) filed a non-detaining petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g) alleging the trailer where mother and Joshua lived was “filthy and unkept” and that there were large piles of dirty clothes, “minimal food, ” and open bottles of alcohol in the trailer. The petition further alleged mother had been in “several domestic violence incidents” witnessed by her son, was being evicted, and had been “uncooperative” when the Agency tried to offer her services. Finally, the petition alleged Joshua was “tardy to school everyday” and arrived “unclean” and without having eaten breakfast.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
The Agency amended the petition in April 2009 to add allegations that mother refused to give a child welfare worker access to her home, had avoided drug testing by shaving “all of her bodily hair, ” and was living with father, “a registered drug offender” with whom she had a history of domestic violence. The court detained Joshua in late April 2009 and ordered mother to comply with various drug testing requirements. Joshua began living with his maternal grandmother, Vicky R.
The court held a contested jurisdictional hearing in late April and early May, 2009. Following the hearing, the court sustained various allegations in the amended petition that mother failed to supervise or protect Joshua (§ 300, subd. (b)). Among other determinations, it concluded there was clear and convincing evidence that leaving Joshua in mother’s custody would create substantial danger to his physical and emotional well-being.
The Agency’s Application to Suspend Face-to-Face Visitation
In late May 2009, the Agency filed an ex parte application to “request that there be no face to face visits” between mother and Joshua “until [mother] can complete her psychological evaluation due to the detriment that Joshua faces while she is visiting with him.” The Agency explained that during a recent supervised visit with Joshua, mother yelled at her mother and Joshua’s caregiver, Vicky R., and claimed it was Vicky R.’s “ ‘fucking fault that we are at this visitation spot!’ ” Mother then demanded the visit take place outside because she had promised Joshua he could see his puppy during the visit. Mother also screamed in a threatening manner at the social worker and left the visitation room.
At that point, the social worker decided to terminate the visit because “Joshua appeared to be uncomfortable by the yelling and his mother leaving the room abruptly then returning.” Mother refused to cooperate, however, and an Alameda County Sheriff’s Deputy escorted her out of the building. Before she was escorted out, she hugged Joshua, told him that “none of [the] things that happened were his fault, ” and said he could call her “everyday if he wanted to.” Joshua “was very upset, crying, and ... extremely sad.”
At a hearing on June 1, 2009, Joshua’s counsel informed the court she favored suspending face-to-face visits until mother was able to “engage in services to stabilize her mental health status.” Counsel explained that the conduct Joshua was “being exposed to is highly detrimental to his emotional health” and noted that Joshua had “gotten to a point where regularly he can be brought to tears over his mother’s conduct, and not because he’s not seeing her. To be clear, it is because of the conduct and because of her behaviors.”
Mother’s counsel asked the court to dismiss the Agency’s application. Mother told the court she felt threatened by the social worker’s presence during the visit and wanted a neutral third party to attend the visits. In response, the court told mother she was “manufactur[ing] things that don’t seem to be there” and was “preventing the visits from going forward.” The court also indicated it was concerned Joshua was “being exposed to scenes and emotional stress that are completely unnecessary, and... appear to be harmful.” The court granted the ex parte application “on a temporary basis” and set a further hearing for June 2009.
At the subsequent hearing on June 18, 2009, the Agency asked the court to suspend visitation until mother could obtain mental health services. It argued it had shown by clear and convincing evidence that visitation was detrimental to Joshua, noting that the “one visitation his mother was even willing to attend” was stressful for Joshua and he “was in tears by the end of it.” Finally, the Agency clarified that it was not “asking for discretion about whether visitation happens or not” and that it had “no objection to resuming supervised visitation” when mother “complies with a psychological evaluation or even medication... to stabilize her moods, ... and once she’s drug tested to show she’s not currently using drugs.”
Mother did not appear at the subsequent hearing because she did not feel “emotionally strong enough.” Her counsel, however, asked the court to order “ongoing regular frequent physical contact” with Joshua. In response, Joshua’s attorney stated Joshua wanted to visit mother “but only when she heals up and stops doing drugs.” Counsel for Joshua also explained that Joshua missed mother and wanted to see her, but that mother’s emotional state and her behavior during their one supervised visit were “so scary.” Counsel asked the court to allow Joshua to call his mother during therapy sessions and to grant the Agency “discretion to facilitate therapeutic visits when that’s appropriate.” In response, Counsel for mother contended it was improper for the court to grant the Agency discretion as to whether and when visitation should occur.
After hearing argument from the parties, the court found the allegations of the section 342 petition true. It determined visitation with mother “would be detrimental” to Joshua and that there was sufficient evidence to suspend visits because mother “not only got into a big argument with the child welfare worker, ” during the one supervised visit but she also “shout[ed] obscenities at her own mother, at Joshua’s grandmother and caregiver and [ ] her behavior was something that would no doubt be alarming to any nine-year-old....” The court ordered “that for the time being visitation between [mother] and [Joshua] is suspended and that contact may be established between... mother and [Joshua] when [Joshua] is in the presence of a therapist and the contact is initially made by telephone. And at the point when the therapist feels that the minor is ready to have face-to-face contact with the mother... the therapist may initiate that in a therapeutic setting. And this contact should be initiated as soon as the therapist is able to set it up.”
The court’s written order stated, “Visits with mother shall be suspended. Telephone contact to be initiated as soon as possible with [Joshua] in [the] presence of his therapist and may proceed to person to person contact in a therapeutic setting. [Child Welfare Worker] has discretion to allow supervised telephone contact outside of the therapeutic setting.” The court also continued Joshua’s out-of-home placement and continued services for mother and father.
DISCUSSION
Mother attacks the order suspending in person visitation on several grounds. First, she argues the court abused its discretion by suspending visitation because there was no evidence visitation would jeopardize Joshua’s safety or cause him emotional harm. Second, mother contends the court abused its discretion by denying her “immediate visitation in a therapeutic setting.” Third, she claims the order unlawfully delegated authority to Joshua’s therapist to determine whether visitation should occur. Finally, mother argues the court violated ICWA notice requirements.
The Court Did Not Abuse Its Discretion by Suspending Visitation
Mother claims the court abused its discretion by suspending visitation because the court’s order is “not supported by the necessary finding that visitation would jeopardize Joshua’s safety” or cause him emotional harm. We review an order denying visitation for abuse of discretion; we uphold the order if it is supported by substantial evidence. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on other grounds, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
“Visitation is a necessary and integral component of any reunification plan. [Citations.] ‘An obvious prerequisite to family reunification is regular visits between the noncustodial parent or parents and the dependent children “as frequent[ly] as possible, consistent with the well-being of the minor.” ’ ” (In re S.H. (2003) 111 Cal.App.4th 310, 317; § 362.1, subd. (a)(1)(A) [“visitation between the parent... and the child [] shall be as frequent as possible, consistent with the well-being of the child”].)
However, “[n]o visitation order shall jeopardize the safety of the child.” (§ 362.1, subd. (a)(1)(B).) Numerous courts have interpreted this language to require the court to make a finding of detriment before suspending or denying visitation. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 (Christopher H.) [court may deny parent visitation “if visitation would be harmful to the child’s emotional well-being”]; In re S.H., supra, 111 Cal.App.4th at p. 317, fn. 9 [“The court may deny a parent visitation only if visitation would be harmful to the child”]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 (Nicholas B.). Detriment includes harm to the child’s emotional well-being. (Christopher H., supra, 50 Cal.App.4th 1008.)
Mother, however, contends the court could not suspend visitation without determining visitation would jeopardize Joshua’s physical safety. She relies on In re C.C. (2009) 172 Cal.App.4th 1481, 1491-1492. In that case, the juvenile court denied the mother visitation because it determined that “further visitation... would be detrimental” to the minor. The court, however, did not expressly find that visitation would harm the minor’s safety. (Id. at pp. 1487, 1492.) The In re C.C. court reversed. It explained that while reunification is still possible, the juvenile court may restrict the frequency of visitation based on an assessment of the child’s “well-being, ” but may not deny visitation entirely under section 362.1, subdivision (a)(1)(B) unless it finds visitation would threaten the child’s “safety, ” which the court interpreted to mean physical safety. (In re C.C., supra, 172 Cal.App.4th at p. 1492.) The court did not discuss Christopher H., supra, 50 Cal.4th at p. 1008, or any of the other numerous cases applying a “detriment” standard to orders suspending or denying visitation.
Assuming In re C.C. is correctly decided, it is distinguishable. Unlike In re C.C., the trial court did not deny mother visitation. Instead, the court regulated the frequency of visitation until there was a change in circumstances. Because the court did not deny visitation entirely, the juvenile court was not required to determine whether visitation with mother would jeopardize Joshua’s physical safety.
Mother’s reliance on In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838, is also misplaced. There, the juvenile court “terminate[d] all visitation” between the father and the son because the court determined “it was necessary for [the son’s] protection to terminate all visitation with his Father.” (Id. at p. 838.) Here, the court did not terminate all visitation.
We conclude the court did not abuse its discretion by suspending visitation. As the record cited above makes manifest, there was substantial evidence that visitation with mother was having a detrimental effect on Joshua. There was no abuse of discretion. (In re Mark L. (2001) 94 Cal.App.4th 573, 581; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
The Denial of Mother’s Request for Visitation in a Therapeutic Setting Was Not an Abuse of Discretion
Next, mother argues the court abused its discretion by denying her “immediate visitation in a therapeutic setting.” We disagree. The juvenile court has broad discretion to determine the terms and conditions of visitation. For the reasons discussed above, mother has not demonstrated the court exceeded the bounds of reason when it denied her request for “immediate visitation in a therapeutic setting.” (In re Daniel C. H., supra, 220 Cal.App.3d at p. 839; In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
The Visitation Order Is Not an Invalid Delegation of Judicial Authority
Mother’s next claim is the court violated the separation of powers doctrine by giving Joshua’s therapist “sole, unlimited discretion” to determine “whether visitation should occur.” As stated above, the court suspended visitation with mother, concluding it would be detrimental to Joshua. The court’s written order provided that telephone contact with mother should be initiated “as soon as possible [with the minor in the] presence of his therapist and may proceed to person to person contact in a therapeutic setting.” In its remarks at the section 342 hearing on June 18, 2009, the court stated that Joshua’s therapist “may initiate” face-to-face contact between Joshua and mother “when the therapist feels that the minor is ready.... And this contact should be initiated as soon as the therapist is able to set it up.” Taken together, the court’s oral pronouncement and written order directed the therapist to initiate telephone contact between mother and Joshua immediately. The court also directed Joshua’s therapist to begin in person contact “as soon as the therapist is able to set it up” after determining Joshua was ready for such contact.
“Article III, section 3, of the California Constitution provides, ‘The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.’ The entire judicial power of the state is vested in the constitutional courts. (Cal. Const., art. VI, § 1.) Under the separation of powers doctrine judicial powers may not be completely delegated to, or exercised by, either nonjudicial officers or private parties. [Citation.]” (In re S.H., supra, 111 Cal.App.4th at p. 318, fn. 11.)
As discussed above, visitation is an essential part of a reunification plan. (In re James R. (2007) 153 Cal.App.4th 413, 435 (James R.).) “The juvenile court has the sole power to determine whether visitation will occur.” (Christopher H., supra, 50 Cal.App.4th at pp. 1008-1009; James R., supra, 153 Cal.App.4th at p. 436.) The court “may not delegate its power to grant or deny visitation” to the social worker, therapist, or the child. (Christopher H., supra, at pp. 1008-1009; In re S.H., supra, 111 Cal.App.4th at p. 317.) “When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine.” (In re S.H., supra, at pp. 317-318, fn. omitted, italics added.)
While a therapist may not determine whether visitation should occur, he or she “may be allowed the limited discretion to determine when court-ordered visitation should begin.” (In re S.H., supra, 111 Cal.App.4th at p. 318, fn. 10; In re Chantal S. (1996) 13 Cal.4th 196, 203-204 (Chantal S.).) Thus, the question here is whether the court delegated the determination whether visitation could occur to Joshua’s therapist. (See In re S.H., supra, at p. 317.) The answer is no. Although the court’s order is not a model of clarity, the court did not unlawfully delegate authority over visitation.
Chantal S. is instructive. There, our Supreme Court rejected a father’s argument that the juvenile court’s visitation order improperly delegated judicial authority to the minor’s therapists. (Chantal S., supra, 13 Cal.4th at p. 213.) The juvenile court’s order stated “ ‘Visitation... for father... to be facilitated by [Chantal’s] therapist... [¶] Before visitation with father and his daughter can occur [¶]... [¶] father must attend therapy regularly and make satisfactory progress for a time before any visits as determined by his therapist.” (Id. at p. 202, brackets in original.) Our high court explained that the visitation order gave Chantal’s therapist “no discretion whatsoever” because the order was apparently designed to “mandate that Chantal’s therapist cooperate with the court’s order that visitation occur once certain conditions are met.” (Id. at p. 213.)
As the Chantal S. court explained, the “juvenile court apparently concluded that to protect Chantal, visitation should not begin until father makes sufficient progress in his own therapy. A juvenile court faced with this situation has two options. First, if circumstances warrant, it could deny father visitation, which in effect would require him to later move the family court to amend the order if he wished to secure visitation. In this regard, we note that father does not contest the position of Riverside County Department of Public Social Services... that on this record the juvenile court would have been within its discretion to simply deny father any visitation. Alternatively, the juvenile court could issue the order it did, specifying that visitation commence in a carefully restricted setting when father’s chosen therapist determines that father has progressed satisfactorily.” (Chantal S., supra, 13 Cal.4th at pp. 213-214, fn. omitted.)
Here, as in Chantal S., the juvenile court was within its discretion to deny visitation under any circumstances on the grounds that visitation with mother would be detrimental to Joshua. (Chantal S., supra, 13 Cal.4th at p. 214.) Mother’s aggressive and unpredictable behavior during her supervised visit with Joshua made him “very upset” and “extremely sad.” Joshua described the visit as “so scary” and said he did not want to visit with mother until she “heals up and stops doing drugs.” That the court did not deny visitation and instead issued an order restricting visitation amounted to a windfall to mother, not a violation of her rights. (Ibid.)
The visitation order here did not unlawfully delegate judicial authority to Joshua’s therapist to determine whether visitation would occur. Instead, the order directed Joshua’s therapist to initiate face-to-face contact between Joshua and mother immediately after the therapist determined Joshua was ready. Our conclusion is supported by counsel for the Agency’s comments at the June 18, 2009 hearing that the Agency was not seeking “discretion about whether the visitation happens or not.” Counsel for the Agency explained that the Agency had “no objection” to resuming supervised visitation when certain conditions were met. Like the order in Chantal S., the order here specified “that visitation commence in a carefully restricted setting” when Joshua’s therapist determined Joshua was ready for such visitation. (Chantal S., supra, 13 Cal.4th at p. 214.) It is well-settled that a court may grant a therapist “limited discretion to determine when court-ordered visitation should begin.” (In re S.H., supra, 111 Cal.App.4th at p. 318, fn. 10.)
Mother relies on two cases, In re Donnovan J. (1997) 58 Cal.App.4th 1474 (Donnovan J.) and Nicholas B., supra, 88 Cal.App.4th 1126. In Donnovan J., the appellate court reversed a visitation order that stated, “Father has ‘no visitation rights without permission of minors’ therapists.’ ” The appellate court concluded the order “neither requires that the therapists manage visitation ordered by the court, nor sets criteria (such as satisfactory progress) to inform the therapists when visitation is appropriate. Instead it conditions visitation on the children’s therapists’ sole discretion. Under this order, the therapists, not the court, have unlimited discretion to decide whether visitation is appropriate.” (Donnovan J., supra, at p. 1477.) The Donnovan J. court explained that a court may “base its determination of the appropriateness of visitation on input from therapists” but cannot delegate its duty to “make the actual determination” regarding visitation to therapists. (Id. at p. 1478.)
In Nicholas B., the court’s order provided that “ ‘visitation... shall not occur until the minor’s therapist expresses support for such visitation. At [the] point where therapist[] consents to visitation, visits are to occur a minimum of one hour per month, supervised at the social worker’s discretion.’ ” (Nicholas B., supra, 88 Cal.App.4th at p. 1138.) The appellate court held the order gave the therapist “too much discretion” and failed “to mandate visitation as a necessary part of family reunification.” (Ibid.) The court explained that the order gave the child and his therapist “veto power” over visitation. (Id. at p. 1139.) Here, and in contrast to Donnovan J. and Nicholas B., the court did not condition visitation on the therapist’s permission or consent. Instead, the court directed the therapist to initiate visitation when the therapist determined the minor was ready. This guideline was appropriate given Joshua’s description of visits with mother as “so scary” and his desire to see her “only when she heals up and stops doing drugs.” While visitation must be as frequent as possible, it must also be “consistent with the well-being of the minor.” (James R., supra, 153 Cal.App.4th at p. 435.)
The Issue of ICWA Notice Is Not Cognizable on Appeal
On March 30, 2009 the Agency reported that ICWA “does not apply” because mother told the Agency there was “no known Indian Ancestry.” But on May 12, 2009, father told Joshua’s social worker he believed there was “some Cherokee in his family” but was “unsure whether anyone is a tribe member.” On May 14, 2009, the Agency concluded ICWA “may apply” but did not make any proposed findings regarding ICWA. The court did not order the Agency to provide notice to the Cherokee tribes.
Mother’s final argument is the visitation order “must be vacated due to noncompliance with the ICWA notice provisions.” Specifically, mother contends the Agency failed to notify the Cherokee tribes “after there was reason to know that an Indian child was involved in this dependency.” The Agency contends any failure to comply with ICWA is not cognizable on appeal because the visitation hearing on June 18, 2009 was not an “Indian child custody proceeding” within the meaning of ICWA and section 224.1.
“ICWA is designed to protect the interests of Indian children, and to promote the stability and security of Indian tribes and families. It sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of [ICWA], notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent by registered mail, return receipt requested.” (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.)
Section 224.1 defines “ ‘Indian child custody proceeding’ ” as “a ‘child custody proceeding’ within the meaning of Section 1903 [of ICWA], including a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement.” (§ 224.1, subd. (c).) “The substantive provisions of the ICWA apply to the minor’s placement in adoption and foster care and to other hearings, such as termination of parental rights, which affect the minor’s status. They do not apply to related issues affecting the minor such as paternity [or] child support....” (In re Holly B. (2009) 172 Cal.App.4th 1261, 1266 (Holly B.); see also Cal. Rules of Court, rule 5.480; In re Robert A. (2007) 147 Cal.App.4th 982, 986, fn. 4; In re J.B. (2009) 178 Cal.App.4th 751, 757 [placement with noncustodial parent did not implicate ICWA].)
Section 1903 of ICWA (25 U.S.C. § 1903) provides: “(1) ‘child custody proceeding’ shall mean and include-[¶] (i) ‘foster care placement’ which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated; [¶] (ii) ‘termination of parental rights’ which shall mean any action resulting in the termination of the parent-child relationship; [¶] (iii) ‘preadoptive placement’ which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and [¶] (iv) ‘adoptive placement’ which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. [¶] Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.”
Holly B. is instructive. In that case, the juvenile court ordered a psychological examination of the minor. (Holly B., supra, 172 Cal.App.4th at p. 1264.) A few months later, the Department of Health and Human Services moved to rescind the order on the grounds that a psychological evaluation was not in the minor’s best interests. (Ibid.) The court granted the petition for modification and father appealed, arguing among other things, that the juvenile court failed to comply with ICWA notice requirements. (Id. at p. 1265.) The father claimed the Department “was on notice that the minor may be an Indian child because the minor’s mother claimed Cherokee heritage” in various petitions for modification filed in 2007. (Id. at p. 1266.)
The Holly B. court rejected the father’s claim. (Holly B., supra, 172 Cal.App.4th at pp. 1266-1267.) The court explained, “[t]he ICWA is not implicated in the orders appealed from and, unlike noncompliance with orders placing a child in foster care or terminating parental rights, failure to comply with the ICWA notice provisions has no impact upon the court’s orders. Accordingly, any failure to comply with the ICWA is not cognizable in this appeal and this court can provide no appellate remedy for error, if any.” (Id. at p. 1267.)
As in Holly B., the Agency’s lack of compliance with ICWA does not impact the visitation order from which mother appeals. Although mother appeals from the section 300 jurisdiction hearing, her opening brief does not address the section 300 jurisdiction order, nor the section 342 dispositional order. Therefore, the only issue before this court is the propriety of the June 18, 2009 visitation order. And that order suspending visitation did not affect Joshua’s “status.” (Holly B., supra, 172 Cal.App.4th at p. 1266; Cal. Rules of Court, rule 5.480(1).) Therefore, ICWA was not implicated. Because ICWA cannot serve as a basis to reverse the order suspending visits, the issue is not cognizable in this appeal.
Having reached this result, we need not address the Agency’s contention that father’s disclosure did not trigger the ICWA duty to notify.
DISPOSITION
The June 18, 2009 order suspending visitation is affirmed.
We concur: Jones, P.J.Bruiniers, J.A12511/A125487