Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK75772. Sherri Sobel, Juvenile Court Referee.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
D.V. (Father) appeals from orders at the dispositional hearing limiting his visitation with his three children to a therapeutic setting and issuing a three-year restraining order against him. Because Father fails to show any error, insufficiency of the evidence, or abuse of discretion, we affirm the orders.
BACKGROUND
Father and Bl.V. (Mother) had a long history of domestic violence and engaged in violent altercations in the presence of the children, B.V. (born in 1992), K.V. (born in 1996), and R.V. (born in 2001). Father also hit both B.V. and K.V. According to K.V., Mother would spank him if he had misbehaved, but Father “would hit us just because.”
Father had used drugs in the past and currently abused alcohol periodically. Father’s criminal history included charges of possession of drugs and a conviction for carrying a loaded gun in a public place. According to B.V., Father always carried a gun in his car and B.V. was afraid to upset Father.
Each parent had left the family home for periods of time. After Mother left the home in 2007 for about a year, Father and the paternal grandmother cared for the children. Mother returned to the home to care for the children in mid-2008 after Father went to Mexico on a family emergency. Although Father had returned from Mexico by October 2008, he did not live in the home but visited often with the children. In early December 2008, after Father moved back into the family home, he and Mother began to argue. In mid-December, the parents called B.V. on his cell phone when he was at school, requesting that he come home to mediate their dispute. B.V. was distraught and did not return home because he did not like being their mediator.
Mother told the Department of Children and Family Services (DCFS) that there had been no recent instances of domestic violence between Father and her. In the past, she used to “take it out on her children,” but now she disciplined her youngest children by spanking them on their bottoms. K.V. reported to DCFS that Mother disciplined him by hitting him with a belt and once she hit him on his nose, causing it to bleed. K.V. was in therapy with a diagnosis of major depression with psychotic features.
B.V. reported that about a year ago, Father took B.V. with him to Mother’s job, forced Mother into his car against her will, and drove so fast on the freeway that B.V. pleaded with Father to stop. B.V. and Mother were scared and believed that Father was trying to commit suicide with them in the car. After Father pulled over on the freeway, he hit Mother. Father also punched B.V.’s face and shoulder as he tried to defend Mother. When they returned home, B.V. and Mother “[lay] down and cried a lot”; Father drank a bottle of tequila.
On December 16, 2008, a social worker from DCFS asked Father if he was willing to leave the home, and he refused because he had nowhere else to live. Father at first denied any domestic violence between Mother and him, but then added that in the past Mother used to hit him and he only defended himself. According to Mother, after the social worker left, Father attempted to take K.V. and R.V. with him away from the home, but the parents’ adult son, F.V., prevented Father from taking the children. Father got mad, pushed F.V., and took the television and DVD player. The next day, Mother told DCFS that she did not feel that she could protect herself or the children from Father. At first Mother did not want to get a restraining order against Father but eventually agreed to do so. When Mother encountered difficulties obtaining a restraining order, she told DCFS that she was stressed out and could not work because of her worry. Mother said that she was “going to allow the worst to happen so that she could finally get her restraining order and she could go to work in peace.”
On December 23, 2008, DCFS detained the children with Mother on the condition that Father not reside in the family home. DCFS filed a petition containing allegations against Father under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling). At the detention hearing on December 29, 2008, Mother signed an application for a restraining order to prevent Father from having contact with her and the children. The court issued a temporary restraining order, with a January 13, 2009 expiration date. The children were released to Mother with family maintenance services. Mother was also ordered to attend domestic violence support group counseling. Father, who did not appear at the hearing, was ordered to attend domestic violence group counseling for perpetrators.
Unspecified statutory references are to the Welfare and Institutions Code.
Because he was in Mexico, Father did not attend a team decision making meeting between DCFS and the family on January 8, 2009. At the meeting, B.V. reported that Father was sending mean and belittling text messages to his and Mother’s phones. Mother agreed to continue to cooperate with DCFS to ensure the children’s safety.
In January 2009, the social worker spoke to all three minor children and Mother in preparation for the jurisdiction and disposition report. R.V. reported that she would cry and feel scared when her parents were fighting; she could not remember her parents ever talking, only fighting. R.V. tried to stop Father from hitting Mother and felt scared at school that Father would hit Mother. R.V. also saw Father with a gun and a knife in his pocket; she “got angry but... did not say anything. It was scary too.” R.V., who had not seen or spoken with Father since the case was opened, felt better and slept better now. She said she did not want to see Father any more.
K.V. reported that when Mother left home for a week, Father and B.V. went looking for Mother; Father said, “‘This is the day your mom dies.’” K.V. felt bad because he could not do anything. Father also told K.V. and B.V., “‘You’re not real men. You’ll never be like me.’”
According to B.V., Father said mean things to him and his brother and to Mother in order to hurt them, but “we know what kind of man he really is.” When Father was fighting with Mother, B.V. would be afraid to go to school, and he would stay home. Between September 2 and October 24, 2008, B.V. missed 13 classes at school. During the same time period, R.V. missed five days of school due to domestic violence at home.
All three children reported that they had difficulties focusing at school because of the domestic violence in the home, that they witnessed Father drink beer and use drugs, that they were scared and anxious when Father was in the home, and that they did not want to see Father and wished to remain living with Mother.
Mother told the social worker that she and Father had been together about 20 years but had been married for only the last five years. Father drank and used drugs throughout their relationship; he began to use cocaine about 10 years ago but stopped about two years ago. In 1993, when they were in Mexico, Father held a gun to Mother’s face, but the children (F.V. and B.V.) were not present at the time.
On January 13, 2009, the original petition was dismissed and a first amended petition was filed which added allegations that Mother failed to protect B.V. from physical abuse by Father. Father appeared in court for the first time on January 13, 2009, and requested a hearing on the matter of a permanent restraining order, which was set for January 23, 2009. The juvenile court declined to order any visitation until the hearing on January 23.
The DCFS social worker interviewed Father on January 22, 2009. Father admitted throwing a peach pit at Mother’s face on one occasion but denied that it caused her nose to bleed and claimed that Mother herself caused the bleeding. Father denied hitting the children and asserted that he and Mother had physical fights in front of the children on only three or four occasions, and the rest of the time they fought verbally. According to Father, Mother drank on the weekends until she would pass out; Mother also hit the children and on one occasion scratched his back and tore his shirt. Father claimed that Mother “‘had them [the children] threatened,’” and that B.V. and their adult son threatened Father and told him that if Father took the children from Mother, “‘“you’ll see what’ll happen.”’”
In its report, DCFS recommended findings that the children were suffering severe emotional damage, as indicated by extreme anxiety, depression, and withdrawal and that they should be removed from Father’s custody because there was a substantial danger to their physical and emotional health and well-being without such removal.
At the jurisdiction and disposition hearing on January 23, 2009, the parents waived their rights, and Father submitted the petition on the basis of the social worker’s reports. The court declared the children dependents of the juvenile court pursuant to section 300, subdivision (b), based on the parents’ domestic violence, Father’s striking Mother, Father’s history of drug use and periodic abuse of alcohol, and Father’s altercation with the children’s adult brother in the presence of R.V. and K.V.
The juvenile court removed the children from Father and ordered them placed with Mother. Mother was ordered to attend domestic violence support group counseling and individual counseling. Father was ordered to attend a 52-week domestic violence counseling program, an anger management class, and drug and alcohol programs with random testing. The children were also ordered to attend individual counseling to address issues of domestic violence.
With respect to visitation, the children’s attorney argued that the children did not want any visits with Father, but if visits were to be ordered, that they be in a therapeutic setting. Father’s attorney informed the court that Father was going to be working and living in San Diego, but that he would come up and visit the children as frequently as the court allowed.
The court ordered visitation only in a therapeutic setting, stating, “The children are [ages] 16, 12, and 7.... Whatever bond is there is already there. Bonding and attachment are the issues in reunification services if there is not already a relationship there. Whatever the relationship the father has with children this age, he is responsible for. And his children have indicated that they have said regularly, consistently, and on and on and on about the violence in the home. [¶] The father’s position in that is the mother attacks him; that the bloody nose was because she made her nose bleed on purpose to make him look bad. [¶] The children talk about how they have been injured in the home. [¶] My concern is not the contact with the father. My concern is that the mother’s going to let him back in immediately. She never wanted to get the restraining order in the first place. [¶] So, at this point, the visitation between the father and the children will be in a therapeutic setting only. [¶] All therapists are to be provided copies of the sustained language and the juris/dispo report. [¶] Mother retains her right to make educational decisions for the children.”
The January 23, 2009 minute order provides that Father’s visits with his children “are to be in a therapeutic setting only and monitored by a DCFS-approved monitor. [DCFS] has discretion to increase these visits in time and duration but no discretion to lift the monitor.”
The juvenile court then proceeded to hear Mother’s request that the restraining order be continued for three years. Father objected to the request and testified that the last time he saw Mother, in December 2008, he did not get into either a verbal or physical altercation with her. Father asserted that the last time he assaulted Mother was in 2007, which was the peach pit incident. He denied telephoning Mother and claimed that she was the one who sent him threatening text messages, to which he did not reply in a threatening manner. He wanted Mother to leave him in peace.
After Father testified, the court remarked, “I have been watching the children throughout the father’s recitation of his position regarding contact. [¶] Let’s assume for the moment that... you’re correct, that he hasn’t done anything to his family for one month. How that negates everything that’s been done for 16 years is beyond me. But, even so, at this point, the court is actually asking [B.V.] to stand up, raise your right hand, and be sworn, please.”
B.V. testified that he did not agree with Father’s testimony; he was with Mother and saw Father’s threatening messages to her. Mother deleted his messages because she did not want the children to see them. B.V. further testified that Father physically harmed Mother a couple of years ago, but not after that; Father was verbally abusive to Mother as recently as one month ago when his parents were arguing and Father telephoned him at school.
Over Father’s objection, the court continued the restraining order for three years, until January 23, 2012, explaining, “[W]hen I have a case that’s close or, if I have a case where it appears that there has been some remorse or some understanding, I do a restraining order for either one year or the period of reunification services until it comes up next. [¶] Here’s what I’m getting from [Father]. He’s not in any way, shape, or form responsible for anything that’s happened in his home. Everything that’s happened in his home is the mother’s fault. [¶] I have... three children and a young man [F.V.] in front of me over the age of 18, each of whom indicates that whatever was happening in the home came from [Father]. [¶] I not only have no remorse but what I have is true battering behavior; that he is behaving in a manner inconsistent with the safety of his wife and his children, and his children have stated they don’t even wish to see him in a monitored situation.” The court continued, “The father is saying that he wants the mother to stay away from him. [¶] I’m ordering him away from the mother. I have included visitation in there when it is appropriate.... [¶] What [Father] can’t do is go near the mother. He’s indicated to me that is fine with him.”
The court also cautioned Mother, “[I]f I find out that you have texted [Father], shown up at his home, contacted a relative of his, or in any way tried to bring him back into your life or your children’s lives, I will immediately remove your children from your home.”
Father appealed from the order, challenging the limitation of his visits to a therapeutic setting and the issuance of the three-year restraining order.
DISCUSSION
A. Visitation Order
Father contends that the limitation of visitation to a therapeutic setting was tantamount to the complete denial of visitation because the children lived in Los Angeles and he was living and working in San Diego and planned to move to Mexico. Characterizing the order as one completely denying visitation, Father then reasons that there was no express finding of risk of detriment to justify such complete denial, and even if such finding is implied, there was insufficient evidence to support a finding of detriment. Father also contends that in reviewing an order denying visitation, we must apply the substantial evidence standard of review rather than the typical abuse of discretion standard for visitation orders.
“Visitation is an essential component of any reunification plan. [Citation.] To promote reunification, visitation must be as frequent as possible. [Citation.] Where the minor is reluctant to visit, and family therapy is needed to promote visitation, such therapy may be critical to reunification. [Citations.]” (In re Alvin R. (2003) 108 Cal.App.4th 962, 972 (Alvin R.).) “But a parent’s liberty interest in the care, custody, and companionship of children cannot be maintained at the expense of their well-being. [Citation.] While visitation is a key element of reunification, the court must focus on the best interests of the children ‘and on the elimination of conditions which led to the juvenile court’s finding that the child has suffered, or is at risk of suffering, harm specified in section 300.’ [Citation.] This includes the ‘possibility of adverse psychological consequences of an unwanted visit between [parent] and child.’ [Citation.]” (In re Julie M. (1999) 69 Cal.App.4th 41, 50.)
We disagree with Father that the instant visitation order was tantamount to a complete denial of visitation and that the only finding supporting the court’s visitation order was the juvenile court’s concern that Mother would in the future allow Father back into her life.
Father provides no authority to support his claim that visitation in a therapeutic setting is tantamount to a complete denial of visitation. Substantial evidence supports the implied finding that the children were afraid of Father and did not want to visit with him. Under such circumstances, the juvenile court reasonably found that visitation in a therapeutic setting was in the children’s best interests and necessary to promote visitation, not to thwart it. We also disagree with Father’s argument that the likelihood of him “having regular visits with his children in a therapeutic setting when he was in Mexico and San Diego and his kids were in Los Angeles was slim to none. It was the equivalent of completely denying [him] visitation....” But at the hearing, Father’s attorney argued that Father was willing to come up from San Diego or Mexico and visit his children as frequently as the court allowed. Thus, the juvenile court reasonably could have concluded that Father’s choice to live and work in San Diego or Mexico would have no impact on the frequency of visitation. And there is no logical connection between Father’s living in San Diego and the court’s limitation of visitation to a therapeutic setting. Accordingly, the court’s order was not tantamount to a complete denial of visitation.
Assuming for purposes of argument that the restriction on visitation to a therapeutic setting required that there be evidence of a risk of detriment without such restriction, we conclude that the record contains substantial evidence of a risk of detriment. The court’s findings in this regard, whether express or implied, were not limited to concerns about Mother’s conduct. Rather, the court specifically mentioned the violence in the home, for which the court found Father responsible. It was also undisputed that the children were afraid of Father, did not want to visit with him, were traumatized by the violence in their home, and would benefit from counseling, which was ordered for all three children. “Insufficient counseling to address [the child’s] emotional trauma, his expression of fear and desire not to return to father’s custody, and the opinion of the social worker that returning [the child] would have an adverse effect on his emotional well-being, provide substantial evidence of substantial risk of detriment to [the child’s] emotional well-being. [Citation.]” (Alvin R., supra, 108 Cal.App.4th at pp. 974–975.)
We conclude that the visitation order was supported by substantial evidence and was well within the discretion of the juvenile court. The order thus passes muster under both standards of review.
Also without merit is Father’s contention that the visitation order constituted an improper delegation of authority to DCFS and was tantamount to a delegation of authority for DCFS to determine whether any visitation occurred at all. “[T]he power to decide whether any visitation occurs belongs to the court alone. [Citations.] 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.” (In re S.H. (2003) 111 Cal.App.4th 310, 317–318, fn. omitted.) “The court may, however, delegate discretion to determine the time, place and manner of the visits.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 (Christopher H.); accord, In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376; but see In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 [court should determine frequency and length of visitation].)
Here, the court order affirmatively affords Father a right to visitation in a therapeutic setting, which right is not illusory. DCFS is mandated to make the arrangements for such visits and no third party has the right to deny such visitation. The only discretion afforded to DCFS is to increase the time and duration of the monitored visits. And the visitation order must be “read in light of statutory mandates prescribing visitation between parent and child ‘as frequent as possible, consistent with the well-being of the minor’ (§ 362.1, subd. (a)).” (Christopher H., supra, 50 Cal.App.4th at p. 1010.) DCFS is thus obligated to facilitate visits that are reasonable in length and frequency for the circumstances of each child. “The role of the [social service agency] and its agents in dependency proceedings is subject to the juvenile court’s supervision and control. If the agency is abusing its responsibility in managing the details of visitation, appellant may bring that matter to the attention of the juvenile court by way of a section 388 petition to modify the visitation order.” (Christopher H., at p. 1010.)
The order here is distinguishable from the improper orders in the cases cited by Father. (In re C.C. (2009) 172 Cal.App.4th 1481 [order finding detriment and denying visitation]; In re James R. (2007) 153 Cal.App.4th 413 [in delinquency case, order delegated all decisions regarding family visits to private program placement]; In re S.H., supra, 111 Cal.App.4th 310 [order allowing children veto power over visitation]; In re Nicholas B. (2001) 88 Cal.App.4th 1126 [order provided visitation would not occur until minor’s therapist consented].) And the court in Alvin R., supra, 108 Cal.App.4th 962, did not address the issue of the validity of the order for conjoint counseling for the father and son, but only whether the agency acted reasonably in providing the services and carrying out the order. Accordingly, we conclude that the instant order does not constitute an improper delegation of authority.
B. Restraining Order
Father contends that the court’s restraining order was not supported by substantial evidence. We disagree.
“Welfare and Institutions Code section 213.5 permits the juvenile court to issue an order ‘enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child....’ (Welf. & Inst. Code, § 213.5, subd. (a).) Accordingly, evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child is certainly sufficient. [Citations.] However, the statute does not state that such evidence is necessary.” (In re B.S. (2009) 172 Cal.App.4th 183, 193 (B.S.).) The court in B.S. rejected the assertion that a restraining order requires evidence of a reasonable apprehension of future abuse, holding that “the better analogy is to Family Code section 6340, which permits the issuance of a protective order under the Domestic Violence Prevention Act in the first instance, if ‘failure to make [the order] may jeopardize the safety of the petitioner....’ [Citations.]” (B.S., at p. 194.)
As in B.S., the juvenile court here could reasonably find that the failure to issue a restraining order might jeopardize the physical and emotional safety of Mother and the children. During the dependency proceeding, Father sent mean and harassing text messages to Mother and B.V. In December 2008, after the DCFS social workers were in contact with the family, Father engaged in a physical altercation with his adult son when Father was attempting to take R.V. away from the family home. And the court found that Father had little remorse and understanding of his own battering behavior and was in denial with respect to his responsibility for causing tension at home and trauma to his children.
Under the foregoing circumstances, the juvenile court reasonably could find that a restraining order was necessary to protect the family from Father’s poor anger management and aggressive and threatening behavior. Even assuming opposite inferences might be equally reasonable, “we are not authorized to second-guess the juvenile court on this point.” (B.S., supra, 172 Cal.App.4th at p. 194.)
DISPOSITION
The orders of January 23, 2009, are affirmed.
We concur: ROTHSCHILD, J., JOHNSON, J.