Opinion
G063259
03-25-2024
In re N.S., a Person Coming Under the Juvenile Court Law. v. S.S., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 23DP0830, Joseph H. Kang, Judge. Affirmed, as modified.
Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
DELANEY, J.
S.S. (Father) appeals from the juvenile court's dispositional order (Welf. &Inst. Code, § 300 et seq.). He contends the visitation order, which is in the dispositional order, impermissibly delegates to his daughter, N.S. (Minor), the power to decide whether any visits will occur. We disagree, in part. Father was granted supervised visitation of at least six hours each week, with visitation "to be upon [Minor's] input only." As worded, the order contemplates visitation will occur and Minor's wishes will be considered, but it does not give Minor the discretion to refuse visits altogether. We conclude, however, that enforcement of the visitation order by the Orange County Social Services Agency (SSA) has effectively conferred upon Minor veto power of all visits. We therefore will modify the visitation order as to Minor's "input," and as modified, we will affirm the dispositional order.
All further statutory references are to the Welfare and Institutions Code.
FACTS
I. Removal, Petition, and Detention
In July 2023, Father, Minor, then age 14, and the paternal grandmother (Grandmother) were living in a hotel. Father and Grandmother had been arguing. Father became angry, punched Grandmother in the knee, and then struck her in the thigh and arm. Grandmother called the paternal uncle (Uncle) for help, but Father took the phone away from her. Minor also tried calling Uncle, but Father took the phone away from her as well. Father slapped and pinched Minor on the shoulder, leaving a small red mark and causing her pain. Uncle called 911.
When officers arrived at the scene and approached Father, he became uncooperative, resisted arrest, and tried to pull away from them. Father was taken to jail, and an emergency protective order was issued, protecting Minor and Grandmother from Father.
SSA obtained a protective custody warrant to remove Minor from the custody of Father and Mother.
This appeal concerns the visitation order as to Father only; Mother did not appeal the court's orders. We therefore recite only facts relevant to the issue on appeal, but we discuss Mother where relevant.
On August 4, 2023, SSA filed a petition alleging Minor was at risk of serious physical harm and Father failed to protect Minor. (§ 300, subds. (a) &(b)(1).)The detention report, filed that same day, disclosed Father's history of mental illness and mistreatment of Grandmother.
The allegations of serious physical harm were later dismissed.
According to Grandmother, Father has OCD and takes medication. Grandmother also reported Father often hears voices, and she has seen Father talking to himself when no one else was around. While being transported to jail, Father stated "he hears voices in the hallway of the hotel room" that "talk[ ] about his family and say[ ] specific things about them." And according to Uncle, Father once said he was going to kill people inside the hotel; however, Uncle stated Father wouldn't hurt anyone.
A few years prior, Father had been arrested and charged with assault and battery against Grandmother. Grandmother reported to police that Father would hit her during verbal fights and poke her with his finger when he thinks she is lying. A week before the July 2023 incident, Father punched a hole in the wall of the hotel room, picked up a knife, and stabbed the interior door.
At the August 4 detention hearing, the court ordered Minor detained in SSA's protective custody. Minor was placed with her maternal aunt (Aunt) and uncle. The court ordered a minimum of six hours per week of supervised visitation for Father and authorized SSA to "liberalize the frequency and duration of visitation, as deemed appropriate."
II. The Jurisdiction and Disposition Report
The jurisdiction and disposition report recommended the court sustain the petition, declare Minor a dependent, remove custody from both parents, and offer family reunification services.
The report attached copies of numerous text messages sent from August 9 to 28 between Father and Aunt, sometimes multiple times a day, with many messages from Father sounding erratic and emotional. Father texted at least eight times asking or demanding to talk with Minor. Father was successful a couple of times.
Father also texted social worker Kirkland Huynh, sometimes very rudely, to ask about visiting Minor. For example, the social worker received a text stating, "I want to speak to [Minor,] Kirkland. What the fuck is going on, get her on the phone." Another text stated: "Can you call [Aunt] tell her she is doing a horrible job and it's time for [Minor] to come home now we still haven't talk to my her that witch [Aunt] is holding [Minor] hostige [Minor] is scared of [Aunt] she wont say anything." (Italicized portions denote spelling and grammatical errors in the original.) A third text demanded the social worker "[c]all [Minor] motherfucker we need to know what's going on." Father later told the social worker he was not trying to be rude and explained the situation had put a lot of strain on him and Grandmother. Father reported feeling as though Minor was "brainwashed and influenced by" SSA.
To reunify with Minor as quickly as possible, Father agreed to attend parent education, individual counseling, medication management, and anger management.
On September 25, the social worker visited Minor at Aunt's home. Minor reported she was adjusting well to her current placement, was comfortable and happy where she was, liked her new school, and was developing friendships there. When asked if she would like to have contact with Father, Minor reiterated she did not want telephone or in-person visits at that time. She could not provide a date when she believed she would be ready to talk to Father. She disclosed she was not happy living with Father, as he was mean to Grandmother and would yell about money all the time.
On October 2, Father informed the social worker he was now enrolled in therapy and asked the social worker to convey the news, as well as his love, to Minor.
III. The Jurisdiction and Disposition Hearing
At the jurisdiction hearing, Father pleaded no contest to the petition as amended by interlineation that same day, and the court sustained the amended petition.
At the October 18 disposition hearing, after the court received into evidence SSA's three reports, Minor testified. She said she was doing "[b]etter than okay" and felt "safe" since living with Aunt. Minor confirmed a social worker talked to her about visiting Father, to which Minor expressed concerns. Around this time Father began disrupting proceedings, so Minor's counsel asked to move her testimony in chambers. The court instead admonished the parents and ordered them to move to the back of the courtroom to give Minor more space.
Testimony resumed. According to Minor, no one suggested she visit with Father, but she wouldn't have agreed, in any event. She wanted to have contact with him, but "not now." She didn't think her relationship with Father had been good. She was upset with him for the incident that brought them to court and for that reason didn't want to visit with him. The court observed Father begin to shake his head and raise his hands, so it ordered the deputy to escort Father outside the courtroom, where he watched the remainder of the proceedings from a remote monitor. The court noted Minor appeared "apprehensive and distressed" due to Father's "under-the-breath remarks." Minor testified she didn't want to live with Father, but she wasn't scared of him, and she didn't want to participate in conjoint therapy with him.
About a week later, at the continued disposition hearing, the court heard argument from the parties. Regarding visitation between Minor and Father, Mother asked the court to "listen" to Minor. According to Mother, Minor "made it very clear that she simply is not ready," and Mother asked "that the parties respect [Minor's] readiness in terms of visitation." Over Father's objection, SSA asked for visitation to be with Minor's "input," and Minor's counsel asked that visitation by any person "be with her input as to time, place, and manner."
The court announced its ruling. The court noted Minor testified clearly that she did not want visits or phone calls with Father, conjoint therapy with him, or to live with him. The court remarked, "[I]f there is any ambiguity about whether she was advised of her rights or not with regards to the visitation, that ambiguity was clear during her testimony. I think it was clear from the testimony that she had these options and, again, her reply was no." The court noted Father's multiple courtroom "outbursts" and that, once he was removed, Minor appeared "more relaxed" and "less stressed." The court took into consideration this "visible evidence, demeanor evidence" in making its rulings.
The court found SSA proved by clear and convincing evidence Minor should not be returned to Father at this time, vesting custody with the parents would be detrimental to Minor, and vesting custody with the SSA director was required to serve Minor's best interest. The court adopted SSA's recommendations in the August 28, 2023, report concerning the case plan, the visitation plan, and family reunification, with the sole modification that Father's visits be monitored. Father received housing assistance, but the court denied his request for conjoint counseling.
The visitation plan in the August 28 report provided: "Visitation is to be supervised by [SSA] or an individual approved by [SSA]. SSA authorized to liberalize visits as to frequency, duration, need for monitoring, restrict visitation, and reinstating original visitation order only if deemed necessary to protect the child's health and/or safety." "Supervised visitation for father to be a minimum of 6 hours per week." "Visitation for mother, father and Paternal grandmother are to be upon [Minor's] input only." The court ordered a visitation review in 90 days and a six-month review hearing. Father timely appealed.
DISCUSSION
Father contends the juvenile court improperly delegated authority to Minor to decide whether any visits between them should take place. We disagree to the extent Father challenges the language of the visitation order, which we conclude is appropriately worded. SSA's enforcement of the visitation order, however, suggests it has been conditioning visitation on Minor's consent. Because it appears SSA has misinterpreted the language of the order, a clarifying modification is warranted.
I. General Principles
To maintain ties between a parent and child, and to provide information on whether to return the child to the parent's custody, an order placing a child in foster care and for reunification services shall provide, among other things, for visitation between the parent and child. (§ 362.1, subd. (a)(1)(A); Cal. Rules of Court, rule 5.695(f)(1).) "Visitation shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) However, "[n]o visitation order shall jeopardize the safety of the child." (Id., subd. (a)(1)(B).)
A juvenile court is responsible for ensuring regular parent-child visitation while "providing for flexibility in response to the changing needs of the child and to dynamic family circumstances." (In re S.H. (2003) 111 Cal.App.4th 310, 317 (S.H.).) "To sustain this balance," the court may permit the child's social worker "to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur." (Ibid.) "[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." (Ibid.)
"Nonetheless, the power to decide whether any visitation occurs belongs to the court alone." (S.H., supra, 111 Cal.App.4th at p. 317.) "[V]isitation may not be dictated solely by the child involved although the child's desires may be a dominant factor." (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138.) "[W]hile the juvenile court may allow the child to refuse to attend a particular visit, to prevent the child from exercising a de facto veto power, there must be some assurance that, should that occur, another visit will be scheduled and actually take place." (S.H., at p. 319.) "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." (Id. at pp. 317-318, fn. omitted.).
II. Standard of Review
The parties disagree on the applicable standard of review. Father argues the substantial evidence standard applies, while SSA contends the standard is abuse of discretion.
Father's reliance on the substantial evidence standard is misplaced. To support his position, Father cites In re Alvin R. (2003) 108 Cal.App.4th 962. In that case, the father challenged the juvenile court's finding - made nine months after ordering reunification services for the father - that reasonable reunification efforts had been made. (Id. at pp. 966-967, 970.) The reviewing court noted, "When a finding that reunification services were adequate is challenged on appeal, we review it for substantial evidence." (Id. at p. 971.) In our case, however, the challenged dispositional order does not include a court finding that reasonable reunification services were made. Instead, it simply ordered reunification services. Any court finding of reasonable reunification services would necessarily be made after issuance of the dispositional order, at a future hearing.
As for SSA's position that visitation orders are reviewed for abuse of discretion, we agree generally with this proposition. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) But the main issue on appeal here is whether the language of the order violates the separation of powers doctrine by unlawfully delegating the juvenile court's power over visitation to Minor. As framed, the issue appears to be a legal question we review de novo. (See The Law Firm of Fox &Fox v. Chase Bank, N.A. (2023) 95 Cal.App.5th 182, 203 ["The interpretation of a court order is a question of law we review de novo"]; In re Lugo (2008) 164 Cal.App.4th 1522, 1535-1536 [applying de novo review to issue of whether court order regarding parole board's procedures violated separation of powers doctrine].) We need not, however, decide between these two standards: "Whatever the language used, an improper delegation of judicial power over visitation will necessarily be found to constitute an abuse of discretion." (In re James R. (2007) 153 Cal.App.4th 413, 434-435.)
III. The Language of the Visitation Order
Although a child may refuse to attend a particular visit, "there must be some assurance that, should that occur, another visit will be scheduled and actually take place. The simplest-but, by no means, the only-way to accomplish this would be for the juvenile court to order a minimum number of visits per month and to impose any essential conditions (for example, whether the visits are to be monitored or occur in a neutral setting), while allowing [SSA] to organize other details of the visitation." (S.H., supra, 111 Cal.App.4th at p. 319, fn. omitted.)
The visitation order here does just that. It granted Father supervised visitation of at least six hours per week. It allowed SSA to "liberalize visits as to frequency, duration, need for monitoring, restrict visitation, and reinstating original visitation order only if deemed necessary to protect the child's health and/or safety." And it called for visitation "to be upon [Minor's] input only." The common meaning of the noun "input," as relevant here, is something that is put in, such as advice, opinion, or comment. (See Merriam-Webster Dict. Online (2024) <https://www.merriam-webster.com/dictionary/input> [as of Mar. 20, 2024], archived at: <https://perma.cc/QDD5-Y8G2> ["1: something that is put in: such as [¶] a: ADVICE, OPINION, COMMENT"].) Reading the terms of the visitation order together, the juvenile court ordered a minimum number of hours per month subject to certain conditions. (S.H., supra, 111 Cal.App.4th at p. 319.)
IV. Enforcement of the Visitation Order
"The role of the [Agency] and its agents in [child welfare] proceedings is subject to the juvenile court's supervision and control. If SSA is abusing its responsibility in managing the details of visitation, appellant may bring that matter to the attention of the juvenile court . . . to modify the visitation order." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1010.) Similarly, "[w]hen a child refuses visitation, it is the parent's burden to request a specific type of enforcement, or a specific change to the visitation order." (In re Sofia M. (2018) 24 Cal.App.5th 1038, 1046 (Sofia M.).)
Here, Father argued SSA and Aunt had not "actively encouraged" Minor to visit with Father or fully explained the ways in which they could visit. Father objected to visitation being with Minor's input. He brought the matter to the juvenile court's attention, so the issue is properly before us.
SSA's reports, which the court received into evidence, show Aunt and SSA consistently handled the scheduling of Father's visits with Minor in the same way: by asking Minor if she would like a visit and accepting her response. For example, in a text message to Father, Aunt stated, "I told [Minor] at lunch time that you wanted to talk to her and I would leave it up to her to decide. I asked her to think about it. I just asked her for her decision." Similarly, a social worker explained to Father that SSA and Aunt "can only ask if [Minor] wants to visit or talk to the father on the phone."
It is one thing to schedule and ready a child for a visit with her parent, but ultimately not force her to participate if she is unwilling. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237 ["children should not be forced to visit with their mother against their will"].) It is quite another to ask the child if she would like to visit with her parent and, in the same breath, indicate to her that she can refuse the visit. (See S.H., supra, 111 Cal.App.4th at p. 319 [children may not effectively be given "power to veto all visits"].) The efforts by Aunt and SSA fall into the second category, and, as such, they are not enough. (Ibid. [Minor's wishes may not "be the sole factor in determining whether any visitation takes place, either as a formal matter or, as occurred in the case now before us, by effectively giving the children the power to veto all visits"].)
While we agree with SSA that "[t]he reality in many of these cases is that the parent has irreparably damaged the relationship beyond salvage" (Sofia M., supra, 24 Cal.App.5th at p. 1047), it is not yet the reality in our case, at least on the record presently before us. Rather, the juvenile court must, consistent with Minor's well-being, enforce the visitation order appropriately. (Ibid.) To that end, we conclude modification of the visitation order is appropriate.
DISPOSITION
The dispositional order dated October 24, 2023, is modified to reflect the term "input," as it relates to Minor's input, means SSA may consider Minor's wishes on the time, place, and manner of the visits with Father, but visitation is neither conditioned nor dependent on Minor's consent. As modified, the order is affirmed.
WE CONCUR: MOORE, ACTING P. J., GOODING, J.