Opinion
A166110
08-25-2023
In re J.C., a Person Coming Under the Juvenile Court Law. v. C.B., Defendant and Appellant. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. DEP-6347-01)
MILLER, J.
This appeal arises from exit orders issued by the juvenile court upon dismissing a dependency proceeding concerning J.C. (Minor) and ordering full legal and physical custody of Minor to his father K.C. (Father) with visitation for C.B. (Mother). Mother argues on appeal that the juvenile court erred in limiting the authority of the family court to modify the custody and visitation order; in delegating to Father authority regarding Mother's visitation; and in imposing limits on Mother's activities with respect to Minor that violate her rights to free association. We shall strike the language in the challenged orders that requires the family court to appoint counsel for Minor at the expense of a parent seeking to modify the custody and visitation orders, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Detention
In April 2021 the Sonoma County Human Services Department (Department) filed a dependency petition on behalf of Minor, then six years old, under Welfare and Institutions Code, section 300, subdivision (c), alleging that Mother placed Minor at substantial risk of suffering serious emotional damage by repeatedly placing him in the middle of her custody battle with Father. The petition alleged that Mother repeatedly alleged in Minor's presence that Father had abused him. Minor was interviewed multiple times by social workers, medical staff, and law enforcement with respect to these accusations, but no physical evidence was observed and Minor did not disclose any abuse. The petition stated that Mother "has recently begun reporting" that Minor sexually abused his maternal halfsibling. In response to this situation, Minor was reportedly saying that he wanted to "die" and become an "angel," and was acting aggressively toward others including violently hitting his younger sister and flipping children off at school. The petition alleged that Minor wanted to attack people who made him upset; fantasized about shooting people with a pistol; and talked about wanting to physically hurt himself and others because of how difficult his life had become.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
The court ordered Minor placed with Father and detained from Mother, ordered supervised visits for Mother, and set the matter for a jurisdiction and disposition hearing on June 2, 2021.
B. Jurisdiction
In its jurisdiction/disposition report, the Department reported that Mother and Father were not married to each other when Minor was conceived, Father did not know that Mother was pregnant, and Mother did not disclose Minor's existence to Father for the first three years of Minor's life. At some point, Father took a paternity test, was named Minor's father, and began sharing legal custody 50/50 with Mother. Since about 2018, Mother and Father had been engaged in a contentious family court proceeding concerning Minor's custody.
In April 2021 the Department received a report that Mother was concerned about sexual abuse between Minor and his maternal half-sibling. Mother also reported that Minor disclosed sexual abuse by his paternal grandfather. According to the jurisdiction/disposition report, investigations found no physical evidence of sexual abuse to the children, and a forensic interview yielded no disclosure by Minor of sexual abuse by his grandfather. A police investigation found no evidence of abuse to Minor by Father or paternal grandfather.
In an interview with a social worker, Minor appeared "highly coached" to disclose physical abuse by Father, but his statements did not make sense. Minor "discussed having to switch between what is the 'truth and a lie' at the mother's home," and said he had punched his younger sister in the face and jammed his fists into her back. Minor said he wanted to find a gun to shoot people who made him upset or hurt him, and discussed at some length how he wanted to physically hurt himself and his peers because of how difficult his life has become with respect to speaking with so many professionals. Minor was aware of the family court case between his parents, and said that he "calls his father 'mean dad' because of his mother's input and due to the father having structure in his home." Minor did not know how to describe where he learned things he believes, because he was confused about what Mother told him to say and not say. Father told the Department that Minor had suicidal thoughts about living in Mother's home.
Since the beginning of the family court proceeding, Mother made multiple reports to the Department and others about concerns of physical and sexual abuse of Minor by Father. The investigations showed that Father "was the 'more stable' parent and there were concerns with the mother's mental health." Recently, Mother claimed to see rectal irritation on Minor multiple times, despite no physical evidence. The Department reported that Minor had been interviewed so many times by social workers, medical staff, and law enforcement, that he had a "script that he runs through in his head to answer questions about his safety." Based on a review of child welfare records, police records, family court documents, and discrepancies in Mother's reports, the Department concluded that Mother had repeatedly made false accusations of abuse, with the dates of her reports "at times" correlated with family court dates. The Department further concluded that Mother was "an unreliable reporter and . . . repeatedly misrepresented information to law enforcement" and to the family court.
The Department recommended the court order family maintenance services for Father and "enhancement services" to Mother through Minor's case plan. Mother contested the Department's recommendation, and requested a psychological evaluation for Minor, which Minor's counsel opposed.
At a contested hearing in July 2021, Mother and Father submitted on the jurisdiction recommendation, and agreed to some amendments to the language of the petition. The court found that the allegations in the amended petition had been proved by a preponderance of the evidence, declared Minor a dependent of the court, and scheduled a disposition hearing for August 11, 2021.
C. Disposition
In advance of the disposition hearing, the Department submitted a statement from Minor's therapist, who reported that Minor's behavior had improved since he was with Father, and that there had been only one incident of aggression toward his sister. Minor struggled after visits with Mother, and he attributed that to being grumpy and hungry. Minor was doing well with structure at Father's home, and had not made any self-harm or suicidal statements.
At the August 11, 2021 hearing, a contested disposition hearing was scheduled, and after some continuances the hearing began on October 7, 2021.
In advance of the disposition contest, the Department submitted an addendum report recommending the dismissal of the case with voluntary family maintenance services to Father "to solidify the Department's determination that [Father's] home was safe" for Minor, and to allow Minor to continue receiving counseling services, which had been beneficial to him. The Department recommended that Father have sole legal and physical custody.
The contested hearing took place on October 1 and November 10, 2021. On the second day of the hearing, on November 10, 2021, during an off-the-record discussion, the parties and the court agreed not to dismiss the case, and to extend family maintenance for Father and enhancement services for Mother. The parties agreed to a goal of coparenting, with the Department authorized to increase visitation. The court declared Minor a dependent of the court, and placed him with Father with family maintenance services. The court scheduled a six-month review hearing for May 11, 2022.
Subsequent dates are in 2022 unless otherwise stated.
D. Six-Month Review and Dismissal
In advance of the scheduled review hearing, the Department filed a report recommending dismissal of the dependency proceeding. The Department reported that Mother and Father were participating in coparenting counseling sessions. They had completed 12 sessions, and at the request of the therapist and with the parents' agreement, 12 further sessions had been approved. In February, Mother began having unsupervised visits with Minor three times a week, for a total of 8 hours per week. The visits were reported to go well, although Father reported that after returning from visits with Mother Minor had recently begun displaying regressive behaviors at home, at school, and at an after school program, including becoming easily frustrated, having melt downs, being disruptive in class, and once expressing thoughts of self-harm. In response, Father had consulted with Minor's pediatrician to seek additional support for Minor.
At the hearing on May 11, Mother expressed concerns about dismissing the case, and there was disagreement as to visitation. Two judicial settlement conferences followed; proposed exit orders were circulated among counsel; and at a master calendar appearance on June 23 the proposed orders were discussed at some length by counsel and the court. In the absence of agreement as to the orders, the matter was continued to June 30 for trial.
At trial, the court heard argument from counsel for Mother, Father, Minor, and the Department. Father and the social worker addressed the court and responded to the court's questions. The court then dismissed the matter, ordering sole legal and physical custody to Father and visitation for Mother "[a]s arranged by the parents but no less than" three hours, once a week, with Mother to have unsupervised visits every Wednesday from 3:00 p.m. to 6:00 p.m., and every other Saturday from 10 a.m. to 2 p.m. The court made the following additional orders:
"2. This order shall not be modified in a proceeding or action described in Section 3021 of the Family Code unless the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child (WIC § 302(d)). In the event either party seeks to amend this order, the family court shall appoint counsel for the minor at the moving party's expense.
"3. Mother shall not work or volunteer at minor's after school activities, daycare, school, or extra curricular activities
"4. Mother's visits may be suspended or returned to supervised visitation if substantiated by evidence (such as input from the minor's therapist or other professional) of minor having negative reactions or a return of suicidal ideations, expressions of self harm or harming others prior to, during, or after visit
"5. Parties agree that Family court shall have immediate access to dependency case file "6. Mother shall not record any visits
"7. Mother shall not receive co-counseling in minor's therapy sessions or receive treatment from the same therapist minor is engaged with"
Mother timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation. (§§ 364, subd. (c), 362.4; In re Kenneth S., Jr., (2008) 169 Cal.App.4th 1353, 1358). Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123 (T.H.).)
As a general matter, we "review the juvenile court's decision to terminate dependency jurisdiction and to issue a custody (or 'exit') order pursuant to section 362.4 for abuse of discretion [citation] and may not disturb the order unless the court '" 'exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].'" '" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) But when the question presented to us concerns the scope of the juvenile court's discretion, we confront a question of law that we review de novo. (Ibid. [citing Choice-In-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422, for the proposition that" 'The scope of discretion always lies in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion' "].)
B. Analysis
1. Limits on the Family Court's Authority
Mother contends that the juvenile court limited the family court's authority by "instruct[ing] it if and how to make certain orders, based on which findings, and order[ing] it to appoint counsel at moving party's expense as opposed to appointed counsel if moving party has no financial ability to afford minor's counsel."
Section 302, subdivision (d) provides that "Any custody or visitation order issued by the juvenile court at the time the juvenile court terminates its jurisdiction pursuant to Section 362.4 regarding a child who has been previously adjudged to be a dependent child of the juvenile court shall be a final judgment and shall remain in effect after that jurisdiction is terminated. The order shall not be modified in a proceeding or action described in Section 3021 of the Family Code unless the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child."
The challenged exit order in this case incorporates verbatim the final sentence of section 302, subdivision (d). We do not interpret this incorporation as an attempt by the juvenile court to limit the family court's authority. The juvenile court is simply stating the law. Nor do we read the juvenile court's statement that Mother's visits "may be suspended or returned to supervised visitation" (italics added) on the existence of certain evidence concerning Minor's reactions to his visits as an attempt to limit the authority of the family court, or to order it to rule a certain way in cases before it, or impose any restrictions on the family court's exercise of its discretion. The language of the juvenile court's order does not purport to require the family court to do anything or to prohibit the family court from acting.
On the other hand, the language stating that, "[i]n the event either party seeks to amend this order, the family court shall appoint counsel for the minor at the moving party's expense" appears to be an order directed to the family court. However, as the court and the parties appeared to recognize at the section 364 hearing, the juvenile court has no authority to order the family court to appoint counsel for Minor or to specify how appointed counsel is to be paid. At the hearing, the juvenile court stated that although it agreed with "all the rest of" the proposed language for the exit order, the family court "can make its own decision with regard to allocating attorney costs."The parties, too, understood that if either party sought to modify the custody and visitation orders the family court would have to decide whether to appoint counsel for Minor and how counsel would be paid.
Our Legislature has authorized the family court to appoint counsel to represent the interests of a minor child in a custody or visitation proceeding if the court determines that such an appointment would be in the child's best interest. (Fam. Code, § 3150, subd. (a).) Appointed counsel is to be compensated in an amount to be determined by the court, to "be paid by the parties in the proportions the court deems just." (Id., § 3153, subd. (a).) However, if "both parties together are financially unable to pay all or a portion of the cost of counsel . . . the portion of the cost . . . which the court finds the parties are unable to pay shall be paid by the county." (Id., § 3153, subd. (b).)
We conclude that it was an abuse of discretion for the juvenile court to order the family court to appoint counsel for Minor and to specify how appointed counsel would be paid. Therefore, we shall strike the language in the challenged orders that, "In the event either party seeks to amend this order, the family court shall appoint counsel for the minor at the moving party's expense." (See In re Cole Y. (2015) 233 Cal.App.4th 1444, 1457 (Cole Y.) [reversing exit order to the extent it limited the family court's authority to modify it].)
2. Father's Authority over Visitation
Mother argues that the juvenile court improperly delegated to Father authority to reduce Mother's court-ordered visitation. Although the court ordered visitation for Mother on Wednesdays for three hours and every other Saturday for four hours, Mother contends that by including language in the order stating that visitation shall be "as arranged by parents, but no less than three hours one time a week," the court "gave father veto power" over Mother's Saturday visits.
As an initial matter, we note that at the section 364 hearing Mother did not express any concern that the language of the proposed order left open the possibility that Father could reduce Mother's visitation. And that is not surprising, because we see nothing in the order to suggest that the juvenile court gave Father any unilateral power to reduce, increase, or otherwise change Mother's visitation. We read the phrase that visitation shall be "as arranged by parents, but no less than three hours one time a week" in the context of the other provisions of the order, which state unambiguously that Mother's visits are to occur each Wednesday for three hours, with an additional four hours on alternate Saturdays. And if the language of the order was not clear enough as to the amount of visitation, the juvenile court at the section 364 hearing explained the scope of Mother's and Father's ability to arrange visitation, stating that they could agree to change days and accommodate schedules, but could not change the amount of visitation without court approval.
The case on which Mother relies to support her argument, T.H., supra, 190 Cal.App.4th 1119, does not help her. In that case, the juvenile court visitation order provided that visitation would occur "only upon the 'agreement of the parents,'" which effectively delegated to the custodial parent "the power to determine whether visitation will occur at all." (Id. at p. 1123.) The matter was remanded for the trial court to formulate an order establishing "at the very least, the amount of visitation to which [the noncustodial parent] is entitled." (Id. at p. 1124.) In the case before us, the trial court order specified not only the amount of visitation to which Mother is entitled, but also the times and days on which visitation is to occur, while affording the parents some flexibility in arranging the details of the times and days to accommodate their schedules and Minor's.
In sum, Mother's contention on appeal that the juvenile court improperly delegated authority over visitation to Father is without merit.
3. Restrictions on Mother's Activities
Mother argues in a conclusory fashion and without any citation to case law that the trial court violated her rights to free association under the First Amendment of the United States Constitution and her rights to "familiar association under the Fourteenth Amendment" when it prohibited her from working or volunteering at Minor's school or activities, from having joint counseling with him, and from recording her visits with him. We are not persuaded.
In her brief, Mother uses the terms "familiar association" and "familial association," and does not distinguish between them.
In the juvenile court, Mother's only objection to the proposed restrictions on her activities was concern that she might not be able to watch Minor play soccer. Nothing in the court's order prohibits Mother from attending events in which Minor is participating.
As a general matter, in crafting an exit order the juvenile court has the authority to issue collateral orders that are reasonably related to its custody and visitation orders. (Cole Y., supra, 233 Cal.App.4th at pp. 1444-1456.) Mother does not contend that the juvenile court's restrictions on her activities are facially unconstitutional; instead she claims that they are "unreasonable." It is not enough for Mother to simply state that restrictions are unreasonable: whether they are reasonable depends upon the pertinent facts and evidence in the case, which Mother addresses only selectively in her brief.
Minor's counsel explained the reason for the proposed restriction on Mother's volunteering: recently, when Minor was having negative reactions to his visits with Mother, there were discussions about eliminating weekend visits. At that point, it was discovered that Mother had obtained a job at Minor's school and was volunteering in his classroom, effectively "infus[ing] herself in [Minor's] entire school day." This led to regressive behavior on Minor's part. The court found that Mother decided to become a volunteer at his school as a way of expanding her visitation, and in that regard acted to benefit herself, and not Minor, and further found that there was a clear history of Mother manipulating Minor in a way that was abusive. Mother's brief is silent on this matter.
As to counseling, the social worker advised the court at the section 364 hearing that she was concerned that the therapist was not neutral. The therapist had stated that she did not want to make any recommendation as to exit orders because the therapist did not want to jeopardize her relationship with the parents, which the social worker and the court regarded as a conflict of interest. The social worker stated that she had considered changing therapists because the therapist here "tried to have a rapport with mom and dad and the child, when her job was to work with the child only." But the social worker concluded that it was best not to make a change, because Minor had been seeing this therapist for about a year and the social worker did not want the child to lose the benefit of the therapy and have to start over with someone new. Minor had reported to the social worker that he enjoyed his therapy sessions because he could talk about his feelings, friends and family, with no one getting angry. In these circumstances, and in view of evidence that Mother had in the past led Minor on his responses and statements and had coached him to make false statements to law enforcement, child welfare workers, and other professionals, Mother fails to show anything unreasonable about an order preventing her from participating in joint counseling with Minor.
Mother claims that in imposing the restrictions on counseling and volunteering at Minor's school and activities the court "violated mother's rights . . . without any regard to future developments that would have made these activities beneficial for [Minor]." The claim is baseless. First, as we have discussed, Mother has not shown that the restrictions are unreasonable and therefore she has not shown that her rights have been violated. Second, should there be a change of circumstances in the future such that the activities at issue are in Minor's best interest, the juvenile court's orders are subject to modification by the family court. (§ 302, subd. (d).)
Finally, the restriction on Mother recording visits with Minor was based upon Mother's recent practice of recording visits, as reported at the section 364 hearing, and her history of "coaching" Minor and attempting to have him subjected to further examinations. Early in the case, the Department reported that Mother brought the social worker a video of Minor engaging in behavior that Mother claimed was sexualized, a view not shared by Mother's partner, or Father, or the social worker. At the section 364 hearing, Mother did not object to the prohibition on recording visits and on appeal she does not even attempt to show that the prohibition is unreasonable in light of the facts of the case.
DISPOSITION
The language in the challenged orders that, "In the event either party seeks to amend this order, the family court shall appoint counsel for the minor at the moving party's expense" is stricken. In all other respects, the challenged orders are affirmed.
WE CONCUR: Richman, Acting P.J. Markman, J.[*]
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.