Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK84631, Margaret S. Henry, Judge.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Rene T. (Father) appeals from an order denying visitation with his three children until visits could occur in a therapeutic setting and until the juvenile court received reports from therapists of Father and of the children concerning their progress and readiness to participate in counseling. Because 36 days later the juvenile court made a new order granting Father visitation with the children, this court can grant no effective relief to Father and the appeal is therefore moot. Even if the appeal is not moot, the juvenile court has discretion to deny visitation when forced contact would cause emotional harm or adverse consequences to the children, and the visitation order appealed from was not an abuse of that discretion. We affirm the visitation order.
FACTUAL AND PROCEDURAL HISTORY
Detention and Section 300 Petition: On October 11, 2010, 11-year-old Luz T., six-year-old Edgar T., and five-year-old Nancy T. were detained after it was concluded that the violent behavior and physical and emotional abuse of the children by their father, Rene T. (Father), posed a risk to the children if they were left in the home with Father. The DCFS removed custody from Father and placed the children with their Mother.
On October 14, 2010, the Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition alleging that Luz, Edgar, and Nancy were persons described by section 300, subdivisions (a) [children suffered, or risked suffering, serious physical harm inflicted nonaccidentally on the child by the child’s parent] (b) [children suffered, or risked suffering, serious physical harm or illness as a result of a parent’s failure or inability to supervise or protect the child adequately], and (j) [a child’s sibling was abused or neglected, and there was a substantial risk the child would be abused or neglected, as defined in subdivisions (a) or (b)].
Unless otherwise stated, statutes in this opinion will refer to the Welfare and Institutions Code.
On October 14, 2010, the juvenile court found that a prima facie case was established for detaining Luz, Edgar, and Nancy as persons described by section 300, subdivisions (a), (b), and (j), and ordered them detained and placed in Mother’s care. The juvenile court found pursuant to section 319 that continuance in Father’s home was contrary to the children’s welfare, that substantial danger existed to their physical and emotional health, and that there were no reasonable means by which to protect their physical or emotional health without removing them from Father’s custody. The juvenile court found that Father Rene T. was the presumed father of all three children, and ordered monitored visits for Father in a therapeutic setting. If the children were not in counseling within the next two weeks, the juvenile court ordered the DCFS to arrange for Father to have visits in a DCFS office. The juvenile court ordered Father to have no contact with the children in Mother’s home.
Adjudication and Dispositional Hearing:
Luz stated that Father first hit her with a belt when she was five years old. She stated that sometimes Father hit her and her siblings for no reason. On one occasion, Father locked Luz in the closet the whole day. When he let her out and saw that she had kicked the door and messed up the closet from the inside, he hit her face and caused her lip to bleed. When Mother became angry with Father for doing that to Luz, Father hit Mother. Luz stated that Father never hit her again on her face, but hit her on her arms or back, and pulled her hair, dragged her to a room by her hair, and hit her on her back with his belt. Mother was at work and did not witness this, but Luz stated that when Mother came home, the children told her what Father did to them. Mother tried to defend the children, but Father ignored her and at other times fought with Mother and hit her. Luz stated that she argued with Father often because he hurt Edgar and Nancy for no reason. She said Father threw shoes at them and did not care if they were hurt. Luz said Father had thrown shoes at her 20 times, and had hit her many times with his hand on her legs or back, and had punched her.
Luz reported that she had seen many physical altercations between Father and Mother. Luz said she did not interfere in their arguments until she was five or six years old. She began to fight back against Father to defend her mother when she realized Father would not stop hurting Mother. Luz stated that Father fought with Mother in front of the three children approximately eight times. Since then, Father hit her, leaving marks and bruises on her body, called her demeaning names, and locked her inside a closet as discipline. Luz said Father told her and her siblings he would hurt Mother if they told her about Father’s abuse.
Luz also stated that Father had hit Edgar with belts on his back and legs and with shoes, although not as often as he hit Luz. Luz also said Father hit Nancy with his belt on her back and on her leg, but not as often as he hit her or Edgar.
Edgar stated that he saw Father hit Luz with his belt more than 10 times, and hit her with his open hand on her back and head when he was angry with her. Edgar said that Father hit him with his belt and with shoes, slapped him on the face, and pushed him so that he hit his knee on the floor. Edgar had a faint linear welt and a bruise on his leg and another bruise on his arm, sustained when Father hit him with a belt. Edgar also stated that Father hit Nancy with a belt, and had pushed her on the floor causing a cut on her knee. When the children told their Mother about Father’s abuse, Father hit her and hit the children again when Mother was not home. Edgar stated that Father had hit Mother many times, at least twice on the face. He had seen marks and bruises on Mother’s body after Father hit her.
Nancy stated that she had seen Father hit Luz with a belt and throw shoes at Luz at least five times. Father called Luz stupid, yelled at her “all the time, ” and hit Luz on her arms, legs, and head. Nancy had also seen Father hit Luz on the face with an open palm. Nancy had seen Father hit Edgar with belts on his buttocks and knees, throw Edgar to the floor, hit him on the face, throw shoes at Edgar, and lock Edgar out of the house. Nancy said Father was “mean” and that she was scared of him because of the physical abuse. Nancy stated that Father threw shoes at her and hit her on her head and hand. He also hit Nancy with belts on her knee or back, and threw her on the floor when he was very angry with her. Nancy stated that the last time Father hit her was October 1, 2010. Nancy stated that Father and Mother argued often, and Father hit Mother on her face with his open hand, and Mother often had bruises where Father hit her.
Father denied physical abuse by him toward Luz, stated that Luz had anger management issues and was the violent one, and said he never hit any of the children, who were making up lies about him. He accused Mother of turning the children against him. Father stated that the only domestic violence that had occurred was on October 9, 2010, when he and Mother argued after she arrived home late. Luz and Nancy were fighting, and when Father asked Luz to stop insulting Nancy she became disrespectful to him and to Mother. When he spanked Luz, Mother slapped him on the face and scratched his arm and eye.
Mother stated that when she was home she never saw Father hit the children until the day Luz became involved in a fight between her and Father. Mother did hear Father call the children stupid and good for nothing. Mother stated that when she defended her children, Father would insult her too and that led to a fight and to Father hitting Mother. Mother noticed bruises on her children and asked them what happened and to tell her if Father hit them. She confronted Father many times about the bruises and about what she heard from neighbors that Father hit the children, but Father became verbally abusive to her and the children. Mother decided to leave Father when the incident with Luz occurred. Mother stated that she was sure that was not the first time Father had hit Luz. Mother had seen bruises on Edgar before the day he was detained, and on that day she saw bruises on Edgar’s leg and arm that she had not seen before so she knew they were recent. Mother also saw bruises on Nancy’s legs and hands, and Nancy told Mother that Father hit her on the day they left Father’s house. Mother stated that she had suspected something was wrong, because her children did not want to stay home with Father and cried every time she left them to go to work. She knew something was going on with their bruises and stated that was why she was going to take the children and leave Father when she found a place she could afford.
Mother stated she and Father had a 15-year-history of domestic violence. Father brought Mother to the U.S. when she was 19 years old and he was 54 years old. She stated he was very dominant and possessive of her, isolated her from friends and family, and did not want her to go to school, obtain employment, socialize, or speak to anyone without his permission. Father became upset and verbally abused her when she attempted to speak with her family. Father locked her out of the home when she did not obey or follow his directions. Father’s aggressiveness worsened when he began to hit her in the children’s presence, slapping and pushing her on various occasions. Father insulted Mother and called her names in front of the children. Father’s physical abuse began when Mother sought independence and obtained employment. On a prior occasion Mother had left Father’s home with the children, but returned when Father told her would change his behavior. After she and the children returned, however, father was again verbally and emotionally abusive with her and the children. Domestic violence continued, and Father again hit her on the face and punched her on her arms and back. Mother stated that she did not leave Father sooner as he began to make threats of killing himself if Mother abandoned him.
Two neighbors informed a CSW of Father’s physical abuse of the children. One stated that Father hit the children and kept them inside the home. This neighbor had lived with Father for two months, and observed ongoing physical abuse. A second neighbor, from next door, heard physical abuse in the home—“woopings” given by Father to the children—and heard the children cry desperately when Father hit them. The neighbor heard Father yell at the children, followed by what sounded like Father hitting the children with a belt. This occurred mainly on weekends when Mother was at work. The neighbor had seen no marks or bruises, because Father never allowed the children to leave the home or socialize with neighbors. Consequently the children had no friends with anyone in the neighborhood. The neighbor had not seen domestic violence in the home, but had witnessed arguments between the parents outside the home.
Father had a visit scheduled for 3:00 p.m. on November 1, 2010. Both parents were late, and after 15 to 20 minutes the visit was canceled. When the parents arrived, a CSW explained to Father that no monitor was available because of their lateness and a CSW could only monitor the visit for 20 to 30 minutes. Father agreed to this visitation time and the visit went forward. The children initially refused to enter the room and speak to Father. During the visit the children appeared uncomfortable and fearful of Father’s presence. Father became upset when the children did not want to approach and hug him. The CSW asked Father not to raise his voice at the children and to allow them to feel comfortable enough to approach him voluntarily. Father became upset and stated that Mother had influenced the children not to want to see him or hug him. The CSW stopped the visit and asked Father to calm down and restrain himself from making these statements in front of the children. The children became uncomfortable when Father began to cry, raised his voice, and stated that Mother told the children not to speak to him or get near him. The CSW then ended the visit and asked Father to leave the visitation room. The CSW told Father he was not to say these things to the children or talk to them about case-related issues. Father became upset and raised his voice at the CSW, who took the children to Mother and asked them to leave the building. The CSW then tried to speak with Father, who was infuriated and demanded to speak to the CSW’s supervisor. The CSW provided contact information to his supervisor and asked Father to calm down or to leave the DCFS office. Father seemed to be having an anxiety attack, but refused the CSW’s offer of medical attention. The CSW stayed with Father until he felt better and left the building safely.
The children told the CSW that they did not want to visit Father and felt uncomfortable in his presence. The DCFS concluded that visits with Father seemed to be affecting the children, and that it would be more beneficial for visits to occur in a therapeutic setting.
On November 4, 2010, the juvenile court ordered the petition amended, sustained the amended petition, and found that the children were persons described by section 300, subdivisions (a), (b), and (j), and declared the children dependent children of the juvenile court. The children were ordered placed in Mother’s home under DCFS supervision.
November 4, 2010 Visitation Order:
With regard to visitation, the juvenile court observed that the last visit had not gone well and was traumatic for the children. Mother’s counsel stated that the children were enrolled in counseling and would start within three weeks. Father also had enrolled in counseling and stated that he had had four sessions. The juvenile court ordered the DCFS to verify that Father was in counseling, and set a progress hearing for December 10, 2010, to determine whether Father had made sufficient progress that the therapist thought he could have visits at DCFS offices or was ready to start conjoint counseling with the children. The juvenile court also wanted to hear from the children’s therapist before they started conjoint counseling, and wanted to know the status of Father, Mother, and children in therapy and any recommendation for visits at the DCFS office or for conjoint counseling. The juvenile court found it would be detrimental to the children to have visits with Father because there was not yet a therapeutic setting for those visits, and the previous visit was extremely traumatic to the children. The juvenile court ordered monitored visits for Father at a DCFS office or therapeutic setting once it was found appropriate, but ordered no visits for Father until the next hearing.
The juvenile court ordered Mother to participate in DCFS-approved programs of domestic violence counseling for victims, parent education, conjoint counseling with the children, and individual counseling to address case issues. The juvenile court ordered Father to participate in parent education, an approved domestic violence intervention program for perpetrators, conjoint counseling with the children when appropriate, and individual counseling to address case issues, including anger management. The children were ordered to be in individual counseling and to participate in conjoint counseling with Mother and with Father when appropriate.
Appeal:
On November 12, 2010, Father filed a timely notice of appeal from the November 4, 2010, order.
December 20, 2010, Visitation Order:
In the December 20, 2010, hearing, the juvenile court ordered monitored visits for Father, a minimum of three hours per week, in a DCFS office.
ISSUES
Father claims on appeal that:
1. The juvenile court erroneously denied Father visitation without a finding that visits posed a risk to the children’s safety; and
2. The December 10, 2010, order reinstating Father’s visitation does not make the issue of the order denying visitation moot.
DISCUSSION
1. The Later Order Reinstating Father’s Visitation Makes the Appeal From the November 4, 2010, Order Denying Visitation Moot
An appellate court will not review questions which are moot, and will not determine abstract questions of law at the request of a party who cannot show that substantial rights will be affected by the decision. An appeal becomes moot when, through no fault of the respondent, an event occurs that renders it impossible for the appellate court to grant effective relief. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054.) “However, a reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review. [Citations.] We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.)
Here, the November 4, 2010, order prohibited Father’s visitation until the juvenile court reinstated Father’s visitation on December 10, 2010. Thus any error in the November 4, 2010, order is moot insofar as this court cannot grant effective relief. This court cannot order visitation to take place in a 36-day period that is already past, and it is unnecessary to reverse the November 4, 2010, no-visitation order because the juvenile court’s December 10, 2010, order granted visitation for Father.
The question is whether a determination that the November 4, 2010, order is moot would affect the outcome of any later proceeding in this dependency case. Father argues that the 36-day period in which his visits were denied may infect future custody and visitation orders when the juvenile court terminates jurisdiction and may affect his ability to reunite with the children. Father does not explain how a finding that the November 4, 2010, order is moot would have these effects, which remain speculative. Father also argues that the 36-day period in which his visits were denied would affect his ability “to maintain ties between the parent... and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent[.]” (Section 362.1, subdivision (a).) Father does not explain how reversal of the November 4, 2010, could provide relief and has not shown why a determination of mootness would affect the outcome of any later proceeding in this case.
2. The Juvenile Court’s Visitation Order Was Not an Abuse of Discretion
If the appeal is not moot, we reject Father’s claim that the November 4, 2010, order denying Father visitation was erroneous because the juvenile court made no finding that the visits posed a risk to the children’s safety.
Section 362.1 governs visitation orders made at the dispositional hearing. Subdivision (a)(1)(A) of that section states: “(a) In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, ... any order placing a child in foster care, and ordering reunification services, shall provide as follows: [¶] (1)(A) Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child.” Subdivision (a)(1)(B) states: “No visitation order shall jeopardize the safety of the child.”
The standard of reviewing a visitation order made by a dependency court is that of abuse of discretion. The reviewing court must consider all the evidence, draw reasonable inferences, and resolve evidentiary conflicts in the light most favorable to the trial court’s ruling. The test is whether any rational trier of fact could conclude that the visitation order advanced the child’s best interests. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
When reunification services have been ordered, visitation is required unless the juvenile court finds that visitation with the parent would jeopardize the child’s safety. (In re C.C. (2009) 172 Cal.App.4th 1481, 1491.) Section 362.1, subdivision (a)(1)(A), however, also states that “[v]isitation shall be as frequent as possible, consistent with the well-being of the child.” The juvenile court may deny a parent visitation if it would be harmful to the child’s emotional well-being. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357.) “[T]he parents’ interest in the care, custody and companionship of their children is not to be maintained at the child’s expense; the child’s input and refusal and the possible adverse consequences if a visit is forced against the child’s will are factors to be considered in administering visitation.” (In re S.H. (2003) 111 Cal.App.4th 310, 317.) The juvenile court found that the November 1, 2010, visit was extremely traumatic to the children and that visits with Father needed to be in a therapeutic setting.
Substantial evidence supported the exercise of the juvenile court’s discretion in making its visitation order. At the November 1, 2010, visit, no monitor was available because Father arrived late. When Father agreed to a monitored visit of 20 to 30 minutes, initially the children refused to enter the room and speak with Father. During the visit they seemed uncomfortable and fearful of Father’s presence. When the children did not want to approach and hug him, Father became upset and demanded that the children hug him. When the CSW asked Father not to raise his voice at the children and to allow them to feel comfortable enough to approach him voluntarily, Father became upset and said the children did not want to see him or hug him because their mother was influencing them. The CSW asked Father to calm down and restrain himself from making these statements in front of the children. When Father began to cry, raised his voice, and stated that Mother negatively influenced the children by telling them not to speak to him or get near him, the children became evidently uncomfortable. The CSW told Father he was not to say these things to the children or talk to them about case issues. Father became upset and raised his voice at the CSW, who ended the visit, took the children to Mother, and asked them to leave the building. Father became infuriated, asked to speak to the CSW’s supervisor, and had what appeared to be an anxiety attack.
There was evidence that Luz was terrified of Father, who physically abused her, and who she saw physically abuse her brother, sister, and mother. Edgar reported that he was afraid of Father, who hit him regularly with a belt and hit his sisters with a belt. Edgar had seen Father hit Mother. Nancy also felt afraid to be at home with Father, and stated that Father hit her several times with a belt and had bruised her hand. Neighbors had heard physical abuse occurring in the home, and heard the children cry desperately when Father hit them. After the November 1, 2010, meeting, the children informed the CSW that they did not wish to visit Father and felt uncomfortable in his presence.
Substantial evidence supported the juvenile court’s finding that no visitation by Father with the children should occur until a therapeutic setting could be arranged and until the juvenile court received reports from therapists concerning the progress of Father and his readiness to start conjoint counseling with the children, and concerning the children’s therapist. The focus of dependency law is on the children’s well-being, and a juvenile court has discretion to determine that visitation should be denied when forced contact would cause emotional harm to the children (see In re Mark L. (2001) 94 Cal.App.4th 573, 581) or adverse consequences to the child (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238). We find no error in the visitation order.
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.