Opinion
B161449.
7-7-2003
In re C. M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent, v. MURIELLE M., Appellant.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Appellant. Lloyd W. Pellman, County Counsel, and Robert Stevenson, Principal Deputy County Counsel, for Respondent.
Mother appeals from orders of the juvenile court terminating dependency jurisdiction, awarding sole legal and physical custody of their child to father, and directing mothers visits with the child be limited as well as monitored. Mother claims the courts order for visitation is inadequate because the court failed to ensure a monitor was in place before terminating jurisdiction. She also argues the courts order for visitation is unlawful because the court improperly delegated its authority to the father to determine the time, place and manner of her visits. She claims these flaws in combination are tantamount to ordering no visitation at all and thus the courts orders must be reversed. We find no error and affirm.
FACTS AND PROCEEDINGS BELOW
Mother was born in France. In March of 1996, she came to the United States to pursue potential career opportunities as a singer and dancer. She entered the country on a visitors visa. She apparently met father at a recording studio where father worked as a sound engineer. They began dating shortly thereafter. In order to obtain a "green card," mother asked father to marry her in September 1997. Despite mothers discovery of fathers infidelities, and despite her belief he was a "sex addict," they got married on September 18, 1997. Their daughter, C., was born in July 1998.
From fathers perspective, the marriage was just an arrangement to facilitate mothers legal residency status and acquisition of a "green card." He did not intend to be monogamous. On the other hand, he committed to remain with mother until C. was at least six months old.
Mother claimed she had married for love and thus had entirely different expectations for their relationship. She was resentful and jealous of fathers behavior and regularly accused father of seeing other women. They argued frequently and were verbally, if not physically, abusive toward each other. They separated in February 1999, with C. staying with mother. At some point mother got a restraining order against father. She later rescinded it in the hopes of reconciling with father.
Mother began working weekends in Las Vegas as a nude and/or topless dancer to support herself and C. According to mother, father regularly threatened to have her deported if she did not let him keep C. over these weekends. The parents maintained this visitation pattern for several months.
In December 1999, C. developed pneumonia. C. was first treated in a private hospital, but because of a lack of funds, she was then transferred to Harbor-UCLA Medical Center. C. remained in the hospital for several days. Over the course of these several days hospital staff and others witnessed the parents violent verbal altercations, as did C. Apparently, hospital staff at both institutions had to summon security several times to quell the disturbances created by the parents arguments and use of profanity. The parents rage and hostility was so intense nursing staff at Harbor-UCLA became concerned the parents arguments were about to become physical. Staff notified the Department of Children and Family Services (DCFS) which took C. into protective custody on December 24, 1999.
The juvenile court detained C. on December 29, 1999. The court referred the parents to counseling and granted them monitored, at least twice weekly, visits with C.
The investigating social worker discovered the parents had a history of domestic violence. The worker also learned on one occasion mother had left C. in the car while mother had an argument with father inside fathers apartment. Interviews with the parents revealed mother was an occasional user of marijuana and that father had used the substance on a nearly daily basis. DCFS filed a dependency petition asserting these allegations.
After the hospital incidents, a health care facility referred the family to the UCLA Family Development Project. The director of the program noted the parents had a good relationship with C. On the other hand, he believed the parents blamed each other for everything and this mutual hatred led to their verbally abusive behavior. He opined the best interest of the child required, among other things, the parents have no contact with one another, even on the telephone.
The therapist at the center who had worked most closely with the family opined each parent had a strong attachment to C. and that C. in turn was quite bonded to her parents. She was of the opinion father did a very good job with C. because he was in tune with the childs needs, sought appropriate advice regarding C.s care, and took advice well. The therapist believed mother was also devoted to C. but had a harder time being consistent. The therapists greatest concern about mother was her level of anger and her inability to calm down. In the therapists view, mothers anger was very frightening to anyone exposed to it, including C. The therapist recommended C. be returned to her parents but only under very strict conditions and monitoring.
At the adjudication hearing the trial court sustained the allegations of the amended petition. It ordered the parents to have a psychological evaluation and granted the parents monitored visits with C., giving DCFS discretion to liberalize provided the parents enroll in an anger management course, drug counseling and testing.
Welfare and Institutions Code section 300, subdivisions (a) and (b). All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
The court received the parents psychological evaluations and a social study report at the disposition hearing on March 21, 2000. These reports concluded in substance mother could provide ongoing care for C. provided she continued with her programs. The court placed C. with mother and granted father unmonitored day visits twice a week. Both parents were ordered to participate in random drug testing, individual counseling to address domestic violence and anger management issues, and to complete a parenting class. Because of the level of hostility between the parents whenever they saw or talked to each other, the court directed the parents not to have contact and ordered father to pick up C. from the DCFS office or any other approved location with a third party present.
By June 2000, father was actively engaged in all court ordered programs. Fathers individual therapist noted he still had some work to do but had made progress regarding his resentment of authority and anger issues. After viewing fathers interaction with C.,
his therapist reported fathers deep feelings for C. were very apparent. Fathers therapist also observed, "his instructions with her were gentle and yet firm. Her feelings toward him were apparent as she played, feeling safe enough with him to venture off a little, but not too far."
Based on this favorable report and others, the court expanded fathers visits to include overnight weekend stays.
Mother, on the other hand, was still having difficulty controlling her rages. In addition to yelling at father, she often yelled and cursed at the social worker. On one such occasion, the social worker could hear C. crying in the background but mother continued her verbal assaults. Mother rejected the need for family preservation services. She also missed several therapy appointments. DCFS reported mother had recently gone to fathers apartment and one of fathers neighbors had to summon the police because she was acting in such a violent and threatening manner.
DCFS became very concerned about mothers volatile and explosive behavior in front of C., and especially so because mother did not appear to appreciate the detrimental effect it had on C. A social worker opined C. was being emotionally damaged by mothers uncontrollable displays of anger. On January 25, 2001, DCFS took C. into protective custody. DCFS filed a supplemental petition requesting an order modifying C.s placement alleging mother had demonstrated emotional and mental problems which limited her ability to provide regular care for and supervision of C.
At the detention hearing in February the court removed C. from mothers custody and released her to father because of his continued progress in court ordered programs. The court ordered mutual restraining orders against the parents and ordered monitored visits between mother and C. three times a week with any DCFS approved monitor and granted DCFS discretion to liberalize her visits.
In March 2001, DCFS learned father had been arrested for assault with a deadly weapon-his truck. With C. in his truck, father had apparently attempted to hit a woman in the parking lot of a supermarket. In investigating this incident, DCFS also learned father had been arrested in February for driving under the influence.
On March 14, 2001, DCFS filed another supplemental petition alleging father had placed C. in an endangering situation because he had attempted to hit a pedestrian while she was riding with him in his truck. The petition also alleged his DUI arrest indicated his substance abuse problem remained unresolved.
These incidents had a profound effect on father. The social worker reported father was very sorry, and acknowledged he alone was to blame for losing custody of C. He admitted what he did was stupid and wrong and wanted to take full responsibility for his actions. Father was very remorseful over the fact he had inadvertently hurt his daughter and wanted nothing more than to reunite with C. as soon as possible.
Mother, meanwhile, continued to create problems. At C. s day care center mother accused the caretakers of lying and cursed at them in front of the children. She also screamed at DCFS caseworkers and threatened to sue them. Mother accused a caseworker of having an affair with father and thus being biased against her.
C. was detained and placed in a confidential foster home. The court ordered the parents to undergo a second psychological examination.
The evaluation reiterated both parents suffered from some level of dysfunction but both were generally within the normal range and that neither posed a risk of physical abuse to C. The evaluator found C. was closely bonded to both parents. On balance, the evaluator recommended father have custody and mother have visits, with her visits gradually increasing to half time.
Over the course of the next several months mother continued to have difficulty controlling her violent outbursts. Mother continued to visit with C. but C. began asking for her, and talking about her, less and less. Mother was convinced she was being victimized by father, the system, and everyone else related to DCFS with whom she came into contact. She relayed many of these feelings to C. This made C. feel uncomfortable and guilty. C. sometimes refused to call mother and other times hung up the phone when mother called without talking to her.
As mother became more self-absorbed, father, by contrast, worked to regain custody of C. He aggressively pursued all court ordered programs. He attended AA meetings three times per week, and attended substance abuse, domestic violence and anger management counseling. He also regularly subjected himself to random drug and alcohol testing, all with negative results. He never missed a visit with C. and was always prompt in taking C. to, or picking C. up from, all scheduled appointments. As time went on fathers visits were liberalized to include lengthy unmonitored visits.
At some point father filed for divorce. This enraged mother all the more. She refused to sign the divorce papers. She used inappropriate language and/or flew into rages whenever C. mentioned father. Mothers monitored visits with C. became somewhat erratic because of her new work schedule.
On May 9, 2002, the court placed C. in the home of father. The court granted his request his new address remain confidential.
In the ensuing months mother did not complete her court-ordered programs, still did not control her behavior in front of C. and the court granted DCFSs request to limit her visits to one hour, once a week. Because mother preferred weekend visits, and because DCFS was not available to monitor visits on weekends, the court directed DCFS to use its best efforts to increase mothers visitation if another appropriate monitor could be located whom father approved. Ultimately, two potential monitors identified by mother were rejected by the court as inappropriate.
The final hearing in this matter occurred on September 12, 2002. DCFS recommended the court grant father sole legal and physical custody of C., limit mothers visits to twice a month and terminate jurisdiction.
At the hearing mother objected to termination of jurisdiction because it would effectively leave her without a monitor for her visits. Mother complained DCFS had rejected her two proposed monitors, she could not afford to pay a professional monitor, and again, because of cost, she would likely not be able to hire an attorney to seek a family law order for a monitor through the SAFE Program designed for this purpose.
The court noted mother had had over 18 months of reunification services and had only partially complied with the case plan. The court denied mothers request for appointment of a monitor. The court noted, "Mother is not in the reunification mode. This court system is to protect children, and those issues have been resolved for [C.s] life in the case of the father. [P] The father has complied with the case plan."
Accordingly, the court terminated dependency court jurisdiction. The court also made orders regarding custody and visitation to be transferred to the existing family law court file. Over mothers objection, the court granted father sole legal and physical custody of C. The court ordered visits for mother to occur twice a month, monitored by a professional monitor, or a mutually agreed upon monitor. The court further ordered mothers visits remain monitored until she "successfully completes individual counseling with a therapist who would be DCFS approved, random drug testing, weekly random drug testing and the rest of the dependency case plan and any liberalization is to be with the recommendation and prior review of the dependency court file."
Mother appeals from the courts orders.
DISCUSSIONTHE COURTS ORDER FOR VISITATION IS NEITHER VOID FOR VAGUENESS NOR AN IMPROPER DELEGATION OF JUDICIAL AUTHORITY TO FATHER.In the present case, the juvenile court exercised its discretion when it terminated jurisdiction to make orders regarding custody and visitation for transfer to the family law court. Section 362.4 permits the court to make such orders and specifies, "any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court."
Section 362.4 provides in pertinent part: "When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minors attainment of the age of 18 years, and proceedings for dissolution of marriage, . . . of the minors parents, . . ., are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion may issue a protective order . . ., and an order determining the custody of, or visitation with, the child.
"Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. The order of the juvenile court shall be filed in the proceeding for . . ., dissolution, . . ., at the time the juvenile court terminates its jurisdiction over the minor, and shall become a part thereof. . . ." (See also, rule 1457 of the California Rules of Court mirroring the terms of the statute.) c
During the dependency proceedings, mothers visits were arranged through, and monitored by, DCFS. Mother points out the courts so-called "exit" order directs her visits with C. are to be monitored by a professional monitor, or by an agreed upon monitor. She thus claims the courts order in effect leaves the question of her visitation to the absolute discretion of father, an improper delegation of judicial authority.
Mothers claim might have merit had the court left the question whether any visitation should occur entirely to a private person, such as father. However, this did not
See, e.g., In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1165 ["The juvenile courts order was improper because it left the entire issue of visitation in the hands of the guardian."]; In re Julie M. (1999) 69 Cal.App.4th 41, 49 [question whether visits should occur at all improperly delegated to the minor]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1478 [question whether visits should occur improperly delegated to a therapist; compare, In re Chantal S. (1996) 13 Cal.4th 196, 213, 913 P.2d 1075 [no improper delegation of absolute discretion because order directed therapist to "facilitate" fathers visits with his child].
In contrast to the situation involving a private person, a juvenile court may delegate to a county social worker the responsibility of managing the details of visitation such as the time, place and manner, but may not delegate absolute discretion to determine whether any visitation should occur. (In re Moriah T . (1994) 23 Cal.App.4th 1367, 1374 ["Only when a visitation order delegates to the probation officer or county welfare department the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine."].)K
occur. Instead, the court ordered visits for mother. Moreover, the court specifically directed mother was entitled to receive such visits twice a month, monitored by a professional monitor, or an agreed upon monitor.
"The essence of the judicial function is to define the rights of the parents in the light of the circumstances" The court must define the rights of the parties to visitation. The definition of such a right necessarily involves a balancing of the interest of the parent in visitation with the best interest of the child. In balancing these interests, the court in the exercise of judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation. The court may, of course, impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it. (In re Jennifer G. [(1990)] 221 Cal. App. 3d 752, 757, 270 Cal. Rptr. 326.)"
In re Randalynne G., supra, 97 Cal.App.4th 1156, 1165-1166.
The order for visitation in the present case satisfies these criteria.
Mothers argument presupposes father will not be cooperative in either agreeing to a neutral monitor, or to the time and place of her visits. Given the level of animosity between the parents, mothers argument is not entirely without some basis in fact. However, mothers remedy is not to seek to invalidate an otherwise valid juvenile court order. To accept mothers reasoning would mean juvenile court jurisdiction has to continue indefinitely until the juvenile court selects a particular monitor agreeable to both parents, and issues an order detailing the exact days, times and places of her visits. However, once juvenile court supervision is no longer necessary for a dependent childs protection, as in this case, the court acts reasonably in terminating its jurisdiction. Moreover, after reunification services have terminated the focus of the juvenile court is the best interest of the child, not the interest of a parent seeking to resolve visitation issues.
In re Chantal S., supra, 13 Cal.4th 196, 204.
In re Marilyn H. (1993) 5 Cal.4th 295, 309, 851 P.2d 826 [After services are terminated, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point "the focus shifts to the needs of the child for permanency and stability."]; see also, In re Roger S. (1992) 4 Cal.App.4th 25, 31.
See, In re John W. (1996) 41 Cal.App.4th 961, 975 ["The juvenile court must not become a battleground by which family law war is waged by other means."].
In any event, mother has several options to ensure she receives her court ordered visitation. She may reprioritize her expenditures and hire a professional monitor for visits. She may, as her counsel at the hearing suggested, secure fathers approval of C.s latest foster mother to act as monitor for her visits. This person has an ongoing relationship with father and C. and still cares for C. on weekends and other times when father is working.
If father in fact impedes her right to visits, mothers remedy is to move to enforce or modify the visitation order in the family law court. "After transfer of the case to family court, the same procedural protections for enforcement and modification applicable to visitation orders originating in family court also apply to [mother]. As noted, . . . the family court may modify the juvenile courts visitation order."
Section 362.4; In re Michael B. (1992) 8 Cal.App.4th 1698, 1705 [After the juvenile court has transferred its custody and visitation order to the superior court, "the parties may seek relief or modification under the authority of section 362.4."]. R
In re Chantal S., supra, 13 Cal.4th 196, 213.
In sum, we find the courts order for visitation is neither an unauthorized delegation of judicial authority nor an abuse of discretion.
In re Chantal S., supra, 13 Cal.4th 196, 214; In re Randalynne G., supra, 97 Cal.App.4th 1156, 1167.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: WOODS, J. MUNOZ, (AURELIO) J.