Opinion
C081945
05-23-2017
In re L.A., a Person Coming Under the Juvenile Court Law. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, Plaintiff and Respondent, v. J.M., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J37663)
Father of minor L.A. appeals from the juvenile court's order terminating visitation with the minor. (Welf. & Inst. Code, § 362.1.) Finding no error, we affirm the juvenile court's order.
Unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Dependency Petition and Protective Custody Order
On August 30, 2015, the Children's Services Division of the Butte County Department of Employment and Social Services (Department) received a referral alleging sexual abuse by father against the four-month-old minor. Mother of the minor reported that she left the minor in father's care and, upon her return, she found father standing in front of the minor on the changing table holding a bottle of "sex lube." Father told mother, "she [the minor] likes this." Mother also reported that father had previously stated to her that he "gets a hard[-]on every time he holds the [minor] on his lap." The Department also received a report of domestic violence between father and mother on August 26, 2015, to which officers from the Chico Police Department responded.
On August 31, 2015, the social worker made an unannounced visit to the parents' home in an attempt to meet the family, but no one answered the door though voices from inside could be heard and the window blinds were moving. The social worker left a business card clipped to the door and left.
On September 2, 2015, the social worker made a second visit to the parents' home, accompanied by two detectives from the Chico Police Department. The detectives informed the social worker that father had recently been arrested and a search of his home revealed a computer memory card containing images consistent with child pornography. The business card previously left by the social worker was no longer there and again, no one answered the door. The social worker left his business card, together with a detective's business card, clipped to the door.
Law enforcement officers went to the parents' home on September 2, 2015, and September 3, 2015, to conduct a welfare check but were unable to make contact with anyone at the home.
On September 9, 2015, the social worker and detectives again went to the parents' home and observed that the business cards previously left were no longer present. Again, no one responded to repeated knocks on the door or calls to mother asking to speak with her. The social worker and detectives inquired of the apartment complex manager about the whereabouts of the family. The manager identified the parents' car parked in the parking lot at the time; however, the car was no longer there when the social worker and the detectives walked back outside. The business cards previously left at the parents' door were also gone.
Later that evening, officers attempted another welfare check at the parents' home but were unsuccessful in making contact with either parent.
On September 11, 2015, the Department filed a petition alleging the minor came within the provisions of section 300, subdivisions (b) and (d). The petition alleged failure to protect the minor due to father's criminal history involving child pornography and violent behavior; the fact that father was awaiting trial on charges of possession of pornography, possession of an unlawful assault weapon, and possession of a large-capacity magazine; and the fact that the parents had not responded to six in-person requests to make the minor available to authorities and had not returned contact as requested. The petition further alleged sexual abuse of the minor by father based on mother's reports to authorities.
Based on the same facts, the Department also filed a request for protective custody order (§ 340) stating the minor was in imminent danger of physical or sexual abuse.
The juvenile court issued the protective custody order and the minor was detained on September 14, 2015. At the time of detention, father was on own recognizance (O.R.) release pending trial on criminal charges for possession of weapons and ammunition, possession of matter depicting a minor engaging in sexual conduct, and possession of sadomasochistic child or youth pornography. Father was arrested after officers found him to be in possession of a shotgun and a semi-automatic handgun in violation of the terms of his O.R. release.
In an interview by a police detective following father's arrest, mother stated she believed father had been molesting the minor. Mother also stated she observed on several occasions that father's penis became erect while he held the minor. Mother also confirmed having found a bottle of sex lube on the minor's changing table after leaving the minor in father's care. Based on her previous observations and the fact that father had charges pending against him for possession of child pornography, mother left the apartment and took the minor to the hospital to have the child examined for any signs of sexual abuse. However, despite her belief that father was sexually abusing the minor, mother returned with the minor to the home she shared with father.
Detention
At the contested detention hearing which spanned several days—September 16, 17, and 21, 2015—father submitted on the issue of detention without further evidence or testimony but subject to "certain objections and comments," including objections to the sufficiency of the evidence in the protective custody warrant, detention of the minor, and the absence of visits with the minor in jail. Father demanded visitation while in custody. Subject to those comments and objections, father submitted without offering any further evidence or testimony. The Department requested a finding of detriment based on the gravity of the allegations in the petition, and argued jail visits would be detrimental to the minor. Mother and minor's counsel supported a finding of detriment. Father objected to such a finding pending an evidentiary hearing.
The court adopted the findings and recommendations in the petition and protective custody order, found there was a substantial danger to the physical health of the minor or the minor was suffering from severe emotional damage and there was no reasonable means of protection without removal from the parents' custody, and ordered the minor detained. The court ordered reunification services to both parents. The court further ordered reasonable visitation by mother as arranged by the Department, but made a finding of detriment as to father based on "the evidence received at the hearing," and precluded visitation "as necessary" with the Department "to do an ongoing assessment" regarding the finding of detriment. The court noted it would "revisit the issue as we attend each hearing, whether there is still a need for the finding of detriment, but so far with what's been received into evidence on that, court is finding detriment, precluding visits between the presumed father and the child."
The court's September 17, 2015, minute order stated, "[Father's counsel] is requesting jail visits for father. Discretion is with [the Department]. Court is very guarded regarding visits with father." The September 21, 2015, minute order erroneously states reasonable visitation shall be allowed to both parents.
Jurisdiction
At the contested jurisdiction hearing on November 16, 2015, father asserted that the petition failed to state a cause of action as to the section 300, subdivision (b) allegations and subdivision (d) allegations. In particular, father argued there was no proof of sexual abuse by him. Mother agreed with father's assertions and objected to the jurisdiction report in its entirety. The Department argued there was sufficient evidence of either sexual abuse or risk of sexual abuse for purposes of the subdivision (d) allegations.
The court sustained the allegations in the petition. With regard to visitation, the court reiterated its prior finding of detriment subject to the ongoing assessment of the Department. Father reiterated his objection and requested that the court vacate its finding of detriment for failure to provide father the opportunity to present evidence. The court inquired of the Department what evidence it should rely on to continue the finding of detriment. The Department noted the subdivision (d) allegation sustained by the court—that father gets an erection "every time he holds the baby in his lap"—was sufficient evidence to demonstrate a risk of detriment to the minor. The Department also requested a psychological examination of father to determine whether the minor was at risk in father's care. Father again objected to the true finding as to the subdivision (d) allegations, arguing there was no evidence father's erection was anything more than reflexive, there was no showing by the Department that visitation with father would include changing the minor's diaper or intimate contact with the minor, and the subdivision (d) allegations alone were insufficient for a finding of detriment.
The court again made a finding of detriment based on the allegations in the petition as presented by the evidence, and noted that, in addition to subdivision (d), the allegations in subdivision (b) also provided a basis for a finding of detriment. The court found visitation with father would be detrimental to the minor. Over father's objection, the court authorized a psychological evaluation of father.
Disposition
The disposition report filed December 11, 2015, recommended both parents be ordered into a plan of family reunification. Father was attending parenting support group counseling but, according to the group facilitator, "seemed to have his own agenda during the group" and, after completing five groups, had yet to accept any responsibility for his actions. Father was also reportedly disruptive and confrontational during group, frightening one of the other group members. It was recommended that father be referred to individual counseling.
The Department reported that, in order to conduct the court-ordered psychological evaluation, it was imperative that father provide valid initials and signatures on a release of information form. Despite leaving telephone messages for father and asking him to come to the office to complete the form, father failed to respond or cooperate.
The report noted that, since father's release from custody, mother recanted her accusations of sexual conduct by father toward the minor and stated father "is a good father." Mother told the social worker that the maternal grandmother "hated [father] and she had twisted things in [mother's] head to make her believe she saw [father] doing things to [the minor]." Mother admitted seeing lube on the changing table, but denied seeing father in a compromising situation with the minor.
The Department maintained its concerns that father was facing pending criminal charges related to child pornography, had not taken responsibility for the minor's removal, and had not cooperated with the Department's attempt to initiate the psychological evaluation. The Department was also concerned about the level of father's cooperation and participation in counseling in light of the reports from the group therapy facilitator.
After a number of continuances, the disposition hearing commenced on February 22, 2016. Mother submitted on the recommendations in the report. The court admitted the December 11, 2015, disposition report into evidence subject to cross-examination. Father called the report's author, social worker Patty Parra, who testified consistent with the disposition report.
The Department requested that the court follow the recommendations in the disposition report, that reunification services be provided to both parents, and that the current visitation orders remain in effect, in particular the finding of detriment as to father. Father lodged a number of objections, including objections to the court taking jurisdiction of the minor as a violation of his civil and constitutional rights, the removal of the minor from both parents, the order for both parents to participate in reunification services, and the participation of the Department and the various law enforcement agencies involved. Father requested that the court dismiss the matter and return the minor to his custody.
The court stated it read and considered the disposition report and adopted the proposed findings and orders therein. With regard to visitation, the court (Roberts, J.) noted that a prior court (Keithley, J.) had previously made a finding of detriment, and inquired about the status of father's criminal case, stating, "[W]e're just at a standstill to try and overcome what the Court has already found." The Department informed the court that, if father cooperated with the Department and participated in services, the risk to the minor could potentially be ameliorated despite the pending criminal charges. The court kept the existing visitation order in place, admonishing father that his cooperation with the Department and participation in services was imperative to overcoming a finding of detriment. The court reiterated that "[a]ll prior orders not in conflict with these orders will remain in full force and effect" and authorized psychological evaluations for both parents. As the hearing concluded, father said, "It seems very contradictory that reunification services would be provided yet the recommendation is the stay away - the child is my private property." He continued, "What you are calling the child is my private property." Father's counsel also informed the court that father wanted to represent himself. The court instructed father to file the appropriate motion and concluded the hearing.
Father filed a timely notice of appeal of the juvenile court's February 22, 2016, order.
DISCUSSION
I
Substantial Evidence of Detriment
Father contends the juvenile court's finding that visitation would be detrimental to the minor was not supported by substantial evidence. The claim lacks merit.
Visitation between parent and child is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings. (In re Luke L. (1996) 44 Cal.App.4th 670, 679.) However, "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).)
It is ordinarily improper to deny visitation absent a showing of detriment. (In re Luke L., supra, 44 Cal.App.4th at p. 679; In re David D. (1994) 28 Cal.App.4th 941, 954.) We " 'giv[e] full effect to the respondent's evidence, however slight, and disregard[] the appellant's evidence, however strong.' [Citation.]" (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.) "We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
At the contested jurisdiction hearing, the juvenile court considered the jurisdictional report, as well as the dependency petition and the protective custody order. The petition alleged father's criminal history involving child pornography and violent behavior; father's pending criminal trial on charges of possession of pornography, possession of an unlawful assault weapon, and possession of a large-capacity magazine; sexual abuse of the minor by father; and both parents' failure to respond to in-person requests by social workers and law enforcement, return contact as requested, or make the minor available. The allegations in the petition, and in particular the allegation of sexual abuse of the minor, were based on mother's report that father was standing in front of the minor on the changing table holding a bottle of "sex lube" and telling her, "she [the minor] likes this," father said he "gets a hard[-]on every time he holds the [minor] on his lap," and mother observed on several occasions that father got an erection after holding the minor. These allegations provided sufficient evidence that, at the very least, the minor was at risk of sexual abuse.
The protective custody order set forth details subsequently provided by mother regarding her belief that father was molesting the minor based on her observations which were consistent with the allegations in the petition. The protective custody order also noted mother left the apartment and took the minor to the hospital to have the child examined for any signs of sexual abuse, but returned with the minor to the home she shared with father. The jurisdictional report filed November 6, 2015, reiterated the allegations in the petition and protective custody order, and attached related police reports and restraining order to which father objected. This evidence corroborated the allegations in the petition and provided further evidence of significant risk to the minor.
The record makes plain that the juvenile court took great care in considering the evidence and making a determination regarding whether visitation with father would be detrimental to the minor. The court noted it was "mindful of the objection raised by [father]" while carefully considering the evidence, "assign[ing] appropriate weight to the attachments, and consider[ing] only admissible evidence, and only that which is relevant to the petition and these proceedings, and [balancing] the weight of the evidence, . . ." The evidence presented, most notably father's pending child pornography charges coupled with his conduct and statements as witnessed by mother and his unwillingness to make the minor available to authorities, demonstrated a clear risk of sexual abuse of the minor by father.
Father claims any likelihood of physical danger to the minor could have been ameliorated by strict monitoring of visits both in jail and after father's release. He cites generally to two cases, In re C.C. (2009) 172 Cal.App.4th 1481 and In re Monica C. (1995) 31 Cal.App.4th 296, neither of which provides support for his claim. As we stated previously, "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B); see In re S.H. (2003) 111 Cal.App.4th 310, 317 & fn. 9 (In re S.H.).)
In any event, even assuming the court could fashion a visitation order requiring the social worker to closely monitor visitation in a manner that would guarantee the physical and emotional protection of the minor, father was not amenable to such oversight. Father repeatedly objected to the court's jurisdiction over the minor, removal of the child from his custody, the order requiring him to participate in reunification services and, perhaps most importantly, "the participation of [the Department]" in the case. His lack of cooperation and participation in services further reflected his resistance to oversight by anyone, particularly the Department.
In light of father's history, the pending child pornography charges, and mother's observations regarding father's troubling behavior with the minor, the court's finding of detriment is supported by substantial evidence.
II
Discretion Regarding Visitation
Conceding that the juvenile court "revisited the detriment finding at each hearing," father contends the visitation order should be reversed because the court improperly delegated its discretion regarding visitation, leaving the issue "completely up to the discretion of the [D]epartment." He further contends the court's written orders are in conflict with the court's oral rulings. We disagree on both counts.
"The juvenile court has the sole power to determine whether visitation will occur and may not delegate its power to grant or deny visitation to the [Department]. The court may, however, delegate discretion to determine the time, place, and manner of the visits. Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009, italics added; accord, In re S.H., supra, 111 Cal.App.4th at pp. 317-318.)
"It is the juvenile court's responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. [Citations.] To sustain this balance the child's social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur." (In re S.H., supra, 111 Cal.App.4th at p. 317; accord, In re Danielle W. (1989) 207 Cal.App.3d 1227, 1234, fn. 3, 1237 [order for "[v]isitation in the discretion of DPSS and minors" was not improper delegation of judicial powers].)
Here, the juvenile court made its initial determination that visitation with father would be detrimental to the minor, but ordered that the finding of detriment be revisited at each subsequent hearing and instructed the Department to continue assessing father in that regard. Thereafter, the court revisited its detriment finding and made subsequent determinations as to whether the finding still applied based on evidence submitted by the Department.
For example, at the September 21, 2015, continued detention hearing, the juvenile court made a finding of detriment as to father and precluded visitation "as necessary" with the Department "to do an ongoing assessment" regarding the finding of detriment. The court added that it would "revisit the issue as we attend each hearing, whether there is still a need for the finding of detriment . . . ." Contrary to the court's oral pronouncement, the September 21, 2015, minute order erroneously states reasonable visitation shall be allowed to both parents. However, where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.)
The record contains a minute order from the September 17, 2015, detention hearing, which states, "[Father's counsel] is requesting jail visits for father. Discretion is with [the Department]. Court is very guarded regarding visits with father." However, because the record does not contain a reporter's transcript of that hearing and interim order, we rely on the court's ruling as pronounced in the September 21, 2015, continued hearing. --------
Consistent with its prior order, the court revisited the issue of visitation at the November 16, 2015, jurisdictional hearing, asking the Department what evidence the court should rely on to continue the finding of detriment. The Department argued the allegation sustained by the court that father gets an erection "every time he holds the baby in his lap" was sufficient evidence to demonstrate a risk of detriment to the minor. The court again made a finding that visitation with father would be detrimental to the minor, based not only on the sustained allegation of risk of sexual abuse, but also on sustained allegations that father was awaiting trial on charges of possession of pornography, an unlawful assault weapon, and a large-capacity magazine and had not responded to in-person requests to make the minor available to authorities or returned contact as requested.
The court made its final visitation ruling at the February 22, 2016, disposition hearing. There, the court admitted into evidence the dispositional report which set forth father's disruptive and confrontational behavior during parenting support group counseling, his failure to accept any responsibility for his actions and the removal of the minor, and his lack of cooperation with the Department's attempt to initiate the court-ordered psychological evaluation. The report also noted the Department's continuing concerns regarding father's pending child pornography charges. The Department requested that the court continue the existing visitation order "with a finding that visitation with [father] at this point would be detrimental until father's participation and substantive progress in those services."
Given the opportunity to dispute the contents of the dispositional report, father cross-examined the report's authoring social worker, who testified consistent with the report, but offered no additional evidence. Father's counsel informed the court of father's request to represent himself, and lodged a number of objections on father's behalf, including father's disagreement with "each and every order" other than the finding of presumed father.
After adopting the proposed findings and orders in the disposition report, the court (Roberts, J.) and the Department had the following discussion regarding visitation:
"[THE COURT:] Visitation consistent with the well-being of the child. [¶] Now, I have not made detrimental findings. That was Judge Keithley that had done that. And I guess that is one of the questions I wanted to ask is what's happening with the criminal case because as long as that criminal case is hanging out there and pending, we're just at a standstill to try and overcome what the Court has already found.
"[THE DEPARTMENT]: Your Honor, I think our concern is that if we're able to work with [father] and he participates in services and we can ameliorate the risk to the child.
"THE COURT: What you are saying is that if you get on board with services and start in services and start in the counseling that may lift the risk even though the criminal charges are not resolved?
"[THE DEPARTMENT]: Absolutely, because we're not the criminal court and we're not interested in prosecuting him. We're interested in reunifying him with his child.
"THE COURT: So the Court is going to go ahead and leave visitation with [the Department] and . . . find that's in the best interest of the child. [¶] So, Father, basically, what [the Department] is saying right now is if you get involved in services, get involved in good faith with the counseling, not going in with your own agenda to a parenting class, but to really learn and understand what can happen to children when they're in unfortunate situations like this that you may be able to overcome that presumption that it's not beneficial to your child, but it's going to mean you cooperating. [¶] . . . All prior orders not in conflict with these orders will remain in full force and effect."
Father claims there was no finding of detriment at the dispositional hearing, and further claims the record is inconsistent because the court's minute order states that the court "authorizes visits with the mother and father as arranged by [the Department]" but "adopts the Findings and Orders as amended and attached," which states that visitation for the father "shall be terminated as it would be detrimental to the child." We are not persuaded.
We interpret the court's statements at the February 22, 2016, hearing to affirm the previous finding of detriment, and to allow ongoing reassessment of father by the Department with the opportunity to return to court and make a recommendation that detriment no longer exists and visitation with the minor is appropriate. While the February 22, 2016, minute order may be confusing, that is of no moment, as the formal order, signed by the court and delivered to the parties, terminates visitation as detrimental to the minor and is therefore consistent with the court's oral pronouncement at the hearing.
The record makes plain that the court entered an order prohibiting visitation between father and minor based on a finding of detriment, but informed the parties that the detriment finding would be revisited at each subsequent hearing, and ordered the Department to do an "ongoing assessment" in that regard. That is to say, while the Department was ordered to provide ongoing evidence of detriment if any existed, the juvenile court maintained the sole power to determine if any visitation occurred. After subsequently revisiting the issue and finding detriment, the court entered its final order continuing the finding of detriment and terminating visitation between father and the minor, with the possibility of future visitation dependent upon father's cooperation and participation in services. We conclude there was no improper delegation of authority here.
DISPOSITION
The juvenile court's order is affirmed.
RAYE, P. J. We concur: BUTZ, J. MURRAY, J.