Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. CK 61144, Jan Levine, Judge.
M.C., in pro. per., for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Minor.
FLIER, J.
M.C. (father) appeals the juvenile court’s orders (1) granting mother full physical and legal custody of their 15-year-old son A.C., (2) denying father visitation and (3) terminating jurisdiction, thereby consigning further custody proceedings to family court. Father contends he did not receive reasonable reunification services as ordered by the court, his efforts at monitored visitation and conjoint therapy with his son were subverted primarily by mother, and no substantial evidence supports the court’s issuing of a restraining order or orders regarding custody and visitation. We affirm.
Father appears in propria persona in this appeal.
FACTS AND PROCEDURAL HISTORY
1. General Background
This dependency matter arises from an ongoing custody dispute between father and mother marked by discord. The parents adopted A.C. as an infant and divorced when A.C. was two years old.
Father and mother shared joint custody until October 2005, when 12-year-old A.C. disclosed to a friend that father had punched him in the stomach and arms with a closed fist on several occasions and A.C. was having suicidal thoughts. A.C.’s friend told a parent about what A.C. had imparted. The Los Angeles County Department of Children and Family Services (Department) became involved when the parent reported suspected abuse to school officials.
2. Department’s Investigation of Suspected Abuse
When he was first interviewed by a social worker, A.C. denied any physical abuse. However, A.C. appeared tense and uneasy, and his manner was tentative. When asked about his relationship with father, A.C. responded only in vague terms. Mother informed the investigating worker that A.C. feared father would exact retribution from him and mother if A.C. disclosed any abuse.
The assistant principal at A.C.’s school told the investigating worker A.C. was an excellent student with no behavioral problems and his teachers thought he was credible. A.C.’s personal therapist also confirmed that A.C. was credible and seemed genuinely fearful of father. The therapist disclosed that father had called her and threatened to report her to the police for speaking with A.C.
During a subsequent interview at the Department’s offices, A.C. admitted to the investigating worker that father had physically and emotionally abused him. A.C. described father as domineering and volatile; he did not allow his authority to be challenged. Father became angry with A.C. about anything, and his anger would escalate until he punched A.C. in the stomach or arm with a closed fist, sometimes leaving bruises. A.C. said although father’s abuse had been ongoing, it had worsened in the last year and a half. A.C. was afraid of father and, when visiting father, he made every effort to stay in his bedroom out of sight. A.C. said he wanted to hurt himself or run away because of father’s actions. A.C. feared telling anyone about father’s abuse because father was a prominent researcher and A.C. believed everyone would take father’s side. A.C. was refusing to see father, stating he did not feel safe with father.
Father holds a Ph.D. and is the chief of a prominent research program.
When interviewed, father denied abusing his son. Father claimed it was A.C. who hit him. Father believed A.C. was lying to please mother. Father said A.C. had mood swings for which father had consulted psychiatrists. A.C.’s attorney from the family law case told the investigating worker that when she last spoke with A.C. in April 2003, he spoke positively about father and therefore father had received more visitations. The social worker noted that father’s alleged abuse of A.C. coincided with the increase in visitation.
A.C. suffered from stress related illnesses, including migraine headaches and abdominal pain, which on one occasion required a visit to the emergency room. He was under medical care, took a variety of medications and underwent various physical therapies for these conditions. A.C. was being treated by a team of medical specialists at the University of California, Los Angeles, Neuropsychiatric Institute pediatric pain clinic.
3. Filing of Petition and Mediated Agreement
As a result of its investigation, the Department concluded A.C. was credible and that he had been inappropriately disciplined by father. The Department filed a dependency petition for A.C. The juvenile court released A.C. to mother’s custody and ordered father to have no contact with A.C. The court ordered conjoint counseling for A.C. and father, but only “when it is deemed appropriate.” (Capitalization omitted.)
At the jurisdictional and dispositional hearing, both parents waived their rights to a trial and submitted on an amended petition. The court found A.C. to be a child described by Welfare and Institutions Code section 300, subdivision (b), and found true the allegation that there was a current conflict between the parents and the child was afraid of father due to inappropriate physical discipline.
All further statutory references are to the Welfare and Institutions Code.
Under a mediated agreement, it was agreed that A.C. would continue to reside with mother and father would receive family reunification services, including monitored visits in a therapeutic setting, in consultation with A.C.’s conjoint therapist. The court ordered that A.C. continue counseling with his therapist, Dr. Heather Krell.
4. A.C.’s Refusal to Undergo Conjoint Therapy with Father
The court ordered the Department to find an independent conjoint therapist for A.C. and father. It directed that the conjoint therapist initially have two sessions with A.C. alone and then, when the therapist deemed it appropriate, conjoint sessions with A.C. and father.
The Department took appropriate steps to arrange for conjoint therapy between A.C. and father. A.C. attended two individual sessions with the conjoint therapist; however, he did not appear for his first conjoint visit with father. Mother told the social worker that A.C.’s migraines and abdominal pains had increased, and she attributed A.C.’s worsened condition to anxiety about having to see father. Mother stated she would not allow A.C. to participate in the conjoint sessions with father.
At a juvenile court hearing requested by the Department, mother’s counsel informed the court that A.C. was “absolutely petrified” and it would take physical force to get him to the visitation with father.
The court ordered the conjoint therapist to confer with A.C.’s attorney and provide the court with a letter regarding the prospects of conjoint counseling. The conjoint therapist stated that because she had never met with A.C. and father for any conjoint sessions, she was unable to ascertain how A.C. and father would interact in a therapeutic session or whether conjoint sessions would be beneficial.
5. Six-month Review Hearing and Stay-away Request
For the six-month review hearing, father’s therapist submitted a letter to the juvenile court stating he had no evidence to suggest father was untruthful in denying he physically abused A.C. Father’s therapist stated that Dr. Krell told father she believed A.C. had fabricated the story of abuse to impress a girl and “‘really dug himself into a hole.’” Father’s therapist expressed concern about a prolonged separation between A.C. and father.
Dr. Krell also submitted a letter to the court stating that father caused A.C. much embarrassment by discussing A.C.’s case with his friends and their parents. Dr. Krell had multiple contacts with father before he stopped spreading information that became gossip at A.C.’s school. Even though both Dr. Krell and mother encouraged A.C. to see father, A.C. refused to do so because he feared he would be physically abused. Dr. Krell reported that mother took A.C. to the first three appointments with the conjoint therapist. To mother’s surprise, however, A.C. left the third appointment early, returning to the car and refusing to go through with the appointment. Mother called Dr. Krell for help. Dr. Krell reported that she herself was reluctant to speak with father as he was pressuring her to give an opinion about the claims of abuse and wanted her to include statements he claimed she had made to him about A.C.’s veracity. Dr. Krell denied ever making such statements.
The juvenile court kept the visitation orders intact and directed that A.C.’s return to the home of mother be the permanent plan. The Department was ordered to provide further reunification services for father. Father did not appeal these orders.
The court told father, “I’m not going to force [A.C.] to see you, and I’m not going to force him to do conjoint counseling until his therapist thinks he’s ready and the conjoint therapist thinks he’s ready.” The court later explained: “[A.C.’s] had a meeting with the conjoint therapist. He’s met her. He’s talked to her. That’s sufficient. . . . [¶] . . . [¶] . . . Everybody needs to keep in mind that what we’re doing is we’re trying to promote [A.C.’s] best interest and his safety and his health and his emotional well-being. And sometimes it’s very painful for parents to understand that the best thing they can do for a child is pull back and not be in that child’s life . . . .”
A.C.’s attorney informed the court that A.C. was worried that father would appear at his upcoming Bar Mitzvah. A.C. wanted the court to do whatever it could to prevent father from attending the ceremony. While making no direct order, the court explained to father that A.C.’s important day should not be filled with anxiety, and the court suggested that father place A.C.’s needs above his own and honor A.C.’s wishes not to have father at his Bar Mitzvah.
Despite the court’s admonishment, father showed up uninvited at A.C.’s Bar Mitzvah with 25 family members, friends and attorney in tow.
6. Twelve-month Hearing and Orders Under Appeal
For the 12-month review hearing, the Department reported that A.C. was in good health; his migraines and abdominal pain vanished once his contact with father had ceased. A.C.’s visits with Dr. Krell had been reduced to only once a month in light of A.C.’s significant progress. A.C. still adamantly refused to have any present contact with father but hoped to develop a relationship with him in the future.
A.C. asked the juvenile court for a restraining order against father allowing no visitation. A.C. testified that father “makes me feel like I’m nothing” and “does what he wants and completely ignores my wishes.” A.C. was intimidated and angered by father’s showing up at his Bar Mitzvah, particularly after father had been asked not to attend. A.C. testified he lost most of his friends at a former school when father told them A.C. was a liar. A.C. had to change schools because the situation became very stressful. He developed migraines and extreme stomach pain due to stress.
A.C. testified his stomach pains stopped in October 2005, when he left father’s custody; they resumed about January 2006, after father talked to A.C.’s friends. A.C. stated that father hit him on a number of occasions. Once, when A.C. had inadvertently given father the wrong directions to a store, father became angry and hit A.C. in the stomach after they got home. Father started hitting him when he was about nine years old and last hit him when he was 12. A.C. said he did not go to the conjoint counseling because he was afraid of father.
Father testified at the hearing that he had not spoken to A.C. since October 2005, when A.C. struck father after overhearing father talking to a child psychiatrist on the phone about A.C.’s behaviors. According to father, A.C. hit him so hard that he became black and blue. Father admitted he attended A.C.’s Bar Mitzvah but claimed he did not attempt to contact A.C. at the ceremony. Father said he complied with court orders by taking classes and going to counseling. He expressed concern that a restraining order would lead to alienation with his son. On cross-examination, father denied telling the parents of A.C.’s friends that A.C. was a liar. However, he admitted sending a fundraising letter to the parents of one of A.C.’s friends regarding “parental alienation.”
After receiving evidence, the juvenile court granted A.C.’s request for a restraining order against father. The court also issued a family law order granting mother sole legal and physical custody of A.C. and no visitation to father. Having disposed of the pending issues, the court terminated jurisdiction over A.C.
In granting the restraining order, the court expressly found “[t]he child . . . feels afraid, threatened and intimidated by . . . father . . . . The dependency case arose due to physical abuse by the father. . . . [F]ather recently violated the contact order and has a history of harassing the minor through people in his life. [A.C.] experienced serious physical problems before his contact with father was limited. He also saw/sees a therapist to address these issues.” The court found A.C. “extremely credible” and father not credible. The court believed A.C.’s testimony that father “hit him and hit him for a number of years,” and it rejected father’s denials. The court found the evidence to be “overwhelming that any reasonable person would . . . suffer substantial emotional distress from the conduct that has been displayed by [father] both before and after this case has been filed.”
Father filed a timely appeal of the restraining order, visitation order and order terminating the juvenile court’s jurisdiction.
CONTENTIONS
Father contends: (1) the juvenile court erred in terminating jurisdiction and issuing an exit order terminating his reunification services; (2) there was insufficient evidence that visitation would not be in the best interests of the child; and (3) the court abused its discretion in issuing a permanent restraining order because there was insufficient evidence of a reasonable danger of harm to his son.
STANDARD OF REVIEW
The standard of review for juvenile court orders terminating jurisdiction is abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Similarly, the standard of review for custody and visitation orders is abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) An appellate court also reviews the propriety of the issuance of a restraining order in a dependency case, as with any restraining order, for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512; see Salazar v. Eastin (1995) 9 Cal.4th 836, 850.) Under this deferential test, the trial court’s ruling must be upheld if it is correct on any basis, regardless of whether that basis was actually relied upon by the court. (Montenegro v. Diaz, supra, at p. 255.) We will reverse the juvenile court only if it exceeded the bounds of reason. (In re Stephanie M., supra, at pp. 318-319.) Moreover, we review the findings and conclusions of the juvenile court for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
In addition, to the extent the appeal raises an issue of statutory interpretation, our review is de novo. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) If the statutory language is clear and unambiguous, we follow its plain meaning and need not examine other indicia of legislative intent. (Ibid.; In re Jesse W. (2007) 157 Cal.App.4th 49, 58.)
DISCUSSION
1. Termination of Jurisdiction
In the present case, the juvenile court held review hearings under section 364. We conclude, however, that section 361.2 more appropriately applies to this case. (See In re Janee W. (2006) 140 Cal.App.4th 1444, 1450-1451.) The juvenile court’s reliance upon section 364 makes no difference to the result. Neither section 361.2 nor section 364 requires a finding of reasonable services prior to the termination of jurisdiction. If evidence on an appropriate issue was undisputed and supports a finding there is no need for continued supervision, we may affirm the juvenile court’s order terminating jurisdiction. (In re Janee W., supra, 140 Cal.App.4th at p. 1452.)
Whether the juvenile court acted under section 364 or section 361.2 is irrelevant. “‘[T]hat the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ [Citation.]” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1494-1495, disapproved on other grounds by In re Chantal S. (1996) 13 Cal.4th 196, 204.)
The undisputed evidence established A.C. was thriving and happy in mother’s care, he was performing well at school, and his physical problems had ceased since his last contact with father. The juvenile court’s discretion in this respect “appears very broad.” (See In re Sarah M., supra, 233 Cal.App.3d at pp. 1495-1496.) There was ample evidence from which the court could find continued jurisdiction was not necessary under the circumstances because further supervision of A.C. in mother’s home was not required.
The juvenile court did not abuse its discretion in terminating jurisdiction.
2. Failure to Enforce Visitation Order
When the court places a child with a parent with whom the child did not previously reside, it may order the parent to become the legal and physical custodian of the child and may also provide reasonable visitation by the noncustodial parent. (§ 361.2, subd. (b).)
In complaining about the juvenile court’s supposed failure to enforce its order for conjoint therapy, father relies on In re Alvin R. (2003) 108 Cal.App.4th 962, in which the court declared that “[v]isitation is an essential component of any reunification plan.” (Id. at p. 972.) In that case, as in the present case, conjoint and individual therapy were critical to reunification. The minor was unlikely to consent to visitation without such therapy. The father had done all that was required under his case plan but there was no evidence that the Department made a good faith effort to bring about the conjoint sessions. (Id. at p. 973.) Here, however, the Department made every reasonable effort to arrange for a conjoint therapist and even sought the juvenile court’s assistance to bring about the conjoint sessions with father. Mother took A.C. to the two individual conjoint sessions ordered by the court and A.C. met the therapist for those sessions. But when mother brought A.C. to the third conjoint therapy session to visit with father, A.C. refused to attend. Mother even sought the assistance of A.C.’s individual therapist, but no amount of persuasion could induce A.C. to visit with father.
Unlike In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505, another case that father cites, the juvenile court did not fail to enforce its visitation order or “impermissibly delegat[e] sole discretion over visitation to the child.” The court here consistently indicated an intention to enforce its order providing for conjoint counseling, received evidence as to whether such visitation should occur, and quite properly exercised its discretion in concluding that forcing A.C. to visit father against his wishes would be detrimental to A.C. The court did not abdicate its duty but acted within its discretion. (See id. at p. 1508.) The best interest of the child is the overarching concern that governs child custody and visitation determinations. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.)
This case is also distinguishable from the facts in In re Julie M. (1999) 69 Cal.App.4th 41, 46, in which the juvenile court’s visitation order gave the dependent minors “the option to consent to, or refuse, any future visits with their mother.” The appellate court held the juvenile court abused its discretion “in giving the children absolute discretion to decide whether [the mother] could visit with them. The order essentially delegated judicial power to the children . . . .” (Id. at pp. 48-49.) Here, of course, the court never gave A.C. discretion to refuse to see father but merely determined under all the circumstances, including A.C.’s regained well-being outside of father’s influence, that it was in A.C.’s best interest to honor his desire not to have contact with father. Nor is this case like In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1475, in which the juvenile court’s order provided that the father had “‘no visitation rights without permission of minors’ therapists,’” thereby delegating to a private therapist “unlimited discretion to decide whether visitation is appropriate.” (Id. at p. 1477.) The court here never delegated to the child or anyone else the absolute discretion to decide whether visits with father would occur.
3. Sufficiency of Evidence for No Visitation Exit Order
Father concedes the juvenile court has authority to terminate jurisdiction with a family law “exit order” granting physical and legal custody to mother. However, he contends the court abused its discretion in ordering no visitation to father because there is no substantial evidence to support such an order.
“While visitation is a key element of reunification, the court must focus on the best interests of the [child] ‘and on the elimination of conditions [that] led to the juvenile court’s finding that the child has suffered, or is at risk of suffering, harm . . . .’ [Citation.] This includes the ‘possibility of adverse psychological consequences of an unwanted visit between [parent] and child.’ [Citation.]” (In re Julie M., supra, 69 Cal.App.4th at p. 50.) And when the juvenile court makes a finding of detrimental effect on the child, the juvenile court has discretion to deny the noncustodial parent any visitation in its exit order. (See In re Chantal S., supra, 13 Cal.4th at pp. 213-214.)
During the dependency proceeding, father maintained legal custody of A.C. and used this power to further harass A.C. Father made concerted efforts to obtain information from A.C.’s new school. Shortly after A.C.’s Bar Mitzvah, father threatened to prevent A.C. from taking a vacation to Mexico even though father had been informed of the vacation in advance. These actions led A.C. to fear that father would use his authority to disrupt future vacations, field trips and visits with relatives. Father also sought to terminate A.C.’s therapy with Dr. Krell despite her obvious success in A.C.’s treatment. In a request for mediation, A.C. wrote, “I don’t want my father to contact me at all . . . because he humiliates me and intimidates me. I feel like I have just started to get my life back on track. I want a restraining order or a no contact order to keep distance from my father from approaching me. [¶] . . . [¶] . . . My dad only cares about himself and how he looks. His reputation and his perceived fame [are] what are important to him. He has not cared about what he has done to me, nor has he listened to what I have asked of him. He still goes around telling people he is innocent and isn’t honest about our [estranged] relationship. . . .”
The juvenile court did not abuse its discretion in ordering no visitation for father in its exit order. Reunification services are a benefit, not a constitutional entitlement, and the juvenile court has discretion to terminate those services at any time, depending on the particular circumstances. (In re Jesse W., supra, 157 Cal.App.4th 49, 60.)
4. Propriety of Restraining Order
Under all the evidence, we find no abuse of discretion in the issuance of a restraining order against father. There was overwhelming evidence that father had physically and emotionally abused A.C. in the past and was likely to do so in the future unless restrained. Father not only denied any abuse but, even after A.C. was removed from father’s care, conducted himself with a profound disregard of A.C.’s well being, including making every effort to disrupt A.C.’s beneficial relationship with his psychotherapist.
In signing the restraining order, the juvenile court stated, “I don’t think that without doing this [father] can restrain himself. I don’t think he’s capable of it. . . . [H]e’s just persisting in the same course of conduct. . . . I don’t have any confidence that in the absence of these orders. [¶] . . . [¶] [A.C.] would be safe from the kind of harm that he has been enduring throughout the course of this matter.”
DISPOSITION
The orders are affirmed.
We concur: COOPER, P. J. RUBIN, J.