Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. INJ018339. Charles Everett Stafford, Jr., Judge. Affirmed.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Carl Fabian, under appointment by the Court of Appeal, for Minor.
OPINION
King, J.
I. INTRODUCTION
Defendant and appellant, T.P. (Father), appeals from the May 15, 2008, orders of the juvenile court concerning Father’s visitation with his only son, C.P. Father claims the court (1) erroneously failed to order “meaningful visitation” for Father by impermissibly delegating “complete discretion” whether to allow visitation with C.P. to C.P.’s therapist, Billie King, and (2) deprived Father of due process in refusing to allow Father to cross-examine social worker Terry Greenstein (SW Greenstein) at a May 15 hearing on an order to show cause (OSC) for contempt for failing to enforce the court’s existing November 2006 visitation order. We find no error and affirm the May 15 orders.
II. BACKGROUND
C.P. came to the attention of the Riverside County Department of Public Social Services (DPSS) on July 15, 2006, when DPSS received a report that C.P., then age nine, had been sexually abused by M., a 13-year-old boy who lived two houses away from Father. At the time, C.P.’s mother and Father were divorced, were sharing custody of C.P., their only child, and were engaged in a custody and visitation dispute in family court. Following an investigation by DPSS and police, C.P. was taken into protective custody on September 1, 2006, and placed in the care of his mother.
The mother is not a party to this appeal.
In October 2006, C.P. was refusing to visit with Father because he was fearful of Father. Carol Bayer, C.P.’s therapist, initially agreed to facilitate visits at her offices. According to DPSS, Father “appears to lack an understanding as to why [C.P.] does not want to see him.”
Contested jurisdictional and dispositional hearings were held on November 7 and 15, 2006. The court sustained allegations that Father had failed to protect C.P. from sexual abuse by M. and concluded that C.P. came within the meaning of Welfare and Institutions Code section 300, subdivision (b) (failure to protect) and (d) (sexual abuse). (§ 361, subd. (c)(1).) The court also ordered C.P. removed from Father’s custody and placed in the care of his mother pursuant to a family maintenance plan. Reunification services were ordered for Father. Visitation between Father and C.P. was to be “in a therapeutic setting” not less than once each week. Each parent’s case plan called for them to attend individual general counseling and complete a Parents United Educational Parenting Class.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father appealed from the November 15, 2006, dispositional order on the grounds there was insufficient evidence to support the jurisdictional findings or removal order. In a nonpublished opinion (In re C.P. (Mar. 18, 2008, E042227), a majority of this court concluded that sufficient evidence supported the court’s jurisdictional findings under section 300, subdivision (b), and the removal order. This court did not determine whether the evidence also supported jurisdiction under section 300, subdivision (d). In a dissenting opinion, Justice King concluded there was insufficient evidence to support the court’s assumption of jurisdiction under either subdivision (b) or (d) of section 300.
By January 2007, C.P. was “feeling anxious” and “displaying symptoms of depression.” Around the end of January, DPSS discontinued Father’s visitation in order to allow C.P. to use all of his therapeutic time with Ms. Bayer. Father was told that visits would resume after C.P.’s prognosis improved. SW Greenstein recommended that C.P. undergo a full evaluation of his mental state before resuming visits with Father.
In a March 2007 six-month review report, SW Greenstein reported that Father appeared to be “going through the motions” of his case plan in order to please the court, while the mother appeared to be “more amiable to the [dependency] process.” The parents “do not communicate well with each other and do not work together [for] the betterment of the child.” C.P. was “overwhelmed” with being “in between” both parents and their history of litigating his custody and visitation. The parents were adhering to their case plans; both were attending individual counseling and Parents United Educational Parenting Class.
SW Greenstein further reported that “[o]verall visitation between the father and [C.P.] in the therapeutic setting has been beneficial.” Then, on March 21, C.P.’s therapist, Carol Bayer, advised the parents, their counsel, and SW Greenstein that she was no longer willing to facilitate visitation between C.P. and Father because it was taking too much time from C.P.’s individual therapy. Ms. Bayer recommended that an approved monitor be appointed or that DPSS monitor visitation.
In April 2007, Father filed a declaration stating he was not simply “going through the motions” as SW Greenstein had reported, and was very concerned about the safety and well-being of C.P. Since September 1, 2006, Father had had only six hours and 15 minutes of visitation and contact with C.P. Two 1-hour visits occurred in March 2007. Father believed “more damage” was being done to C.P. due to his isolation from Father and his paternal family, and C.P. was being placed in the unhealthful position of having to choose between his mother and Father. C.P. told Father he was no longer fearful of him and wanted “things to go back to the way they were.” Father wanted C.P. to attend counseling sessions with Father and Father’s therapist. Father claimed the social workers were biased in favor of the mother and were refusing to comply with the court’s November 2006 visitation order. In addition, SW Greenstein had refused Father’s request to allow visitation to occur at the offices of Father’s therapist. Finally, Father asked that the juvenile court dismiss its jurisdiction and transfer the case back to family court with exit orders giving the family court jurisdiction to order appropriate custody and visitation.
Later, in April 2007, DPSS filed an addendum review report in which it requested that the court continue its jurisdiction and both parents’ case plans. SW Greenstein believed Father needed additional time to understand that C.P. needed time to heal from the molestations by M. and that C.P., rather than Father, was the victim in this matter. At a hearing on April 20, 2007, DPSS recommended that the court appoint Dr. Hilda Chalgujian, a psychologist, to evaluate C.P.’s mental state pursuant to Evidence Code section 730 and stay visitation between Father and C.P. pending the evaluation. Minor’s counsel agreed that Father’s visitation should be stayed pending the evaluation. Father agreed that C.P. should be evaluated, but objected to his visitation being stayed. Father’s counsel told the court that, despite the November 2006 order for not less than weekly visitation in a therapeutic setting, Father had only been allowed to visit with C.P. approximately once each month. Father asked that DPSS be ordered to supervise the visits. The court agreed, and ordered DPSS to monitor Father’s visitation. The court also ordered the evaluation and continued the six-month review hearing.
At a further hearing on December 6, 2007, Father complained to the court that DPSS was not facilitating Father’s visitation and had impermissibly delegated “the issue as to whether or not visits would happen to the therapist and to the child.” The court said it was prepared to dismiss its jurisdiction and transfer the matter to family court, but was awaiting this appellate court’s ruling on Father’s appeal from the November 2006 disposition order. The court again continued the six-month review hearing and continued its existing visitation order “in full force and effect.”
In a further addendum report dated September 6, 2007, SW Greenstein reported that, on June 4, C.P. had asked that his visits with Father be terminated because they were “no fun,” and C.P. was “uncomfortable” because Father was “asking too many questions about his mother.” On August 5, C.P. again asked that his visits with Father be terminated. C.P. said he did not feel safe with Father and did not want to live with Father. On August 22, C.P. told Dr. Chalgujian he did not want to see Father and was fearful Father would chastise him. In a neuropsychological report dated August 23, Dr. Chalgujian described C.P. as highly sensitive and exhibiting behaviors consistent with having been “perhaps harshly disciplined.” Dr. Chalgujian referred to “multiple incidents” in which Father failed to comprehend the seriousness of the molestation or its psychological effects on C.P. Following a joint therapy session with Father and C.P., Dr. Chalgujian described Father as “withholding and punitive.” When confronted, Father became defensive and argumentative.
In the September 6 report, SW Greenstein opined that Father “no doubt” loved C.P but did not understand that C.P., rather than Father, was the victim in this case or that DPSS was trying to help the family. Although both parents had completed their case plans, DPSS recommended that both parents continue in individual therapy in order to “better understand themselves” and effectively parent C.P. Despite these concerns, DPSS recommended that the court terminate its jurisdiction and refer the matter to family court. Father also wanted the court to terminate its jurisdiction and refer the matter to the family court. Then, on September 13, DPSS filed a section 342 petition alleging that Father “showed disregard” for the safety of C.P by, among other things, permitting him to have contact with “unauthorized individuals in violation of the therapeutic limits” designed by Dr. Chalgujian. In a detention report, DPSS explained that, during a home visit with Father, Father allowed C.P. to have contact with two neighborhood children against the direction of Dr. Chalgujian. In addition, C.P. continued to be “anxious, withdrawn, [and] depressed,” when exposed to Father. On September 14, the court ordered C.P. temporarily detained from Father pending further investigation.
After September 14, the six-month review hearing and hearing on the allegations of the section 342 petition were continued several times. On February 4, 2008, Father filed the OSC, directed at DPSS and SW Greenstein, for refusing to follow the visitation order. On February 13 and pursuant to Father’s petition, this court issued a peremptory writ of mandate directing the juvenile court to conduct a hearing on whether Father was receiving his court-ordered visitation and, if not, to take appropriate action to ensure that the court’s visitation orders were carried out. Finally, on May 15, 2008, three matters came before the juvenile court: (1) the hearing on the OSC, (2) the contested six-month review hearing, and (3) the hearing on the section 342 petition.
Regarding the OSC, Father testified he had last visited with C.P. on June 20, 2007, nearly 11 months earlier. SW Greenstein told Father that C.P. did not want to see him and could not be forced to visit him. In arguing the OSC, Father’s counsel claimed that SW Greenstein had willfully disobeyed the court’s visitation order by refusing to obtain a new therapist who was willing to facilitate visitation. Counsel argued that if visitation with Father was detrimental to C.P., then DPSS and SW Greenstein should have requested that the court make that finding; however, they never did so. Father’s counsel also sought to cross-examine SW Greenstein concerning the contents of the DPSS reports. Because SW Greenstein was a party to the OSC, DPSS objected to his cross-examination on Fifth Amendment grounds. The court sustained the objection and did not allow Father’s counsel to cross-examine SW Greenstein.
The court discharged the OSC after concluding there was “no basis” to find either DPSS or SW Greenstein in contempt of the visitation order. The court said it could not find “that there was a willful, malicious attempt to deprive [Father] of visitation” because the therapist believed “it would not be in the best interests of [C.P.] to force visitation,” and neither DPSS nor SW Greenstein had any “basis to do anything contrary to the recommendation of the therapist.”
Next, DPSS moved to withdraw the section 342 petition, and the court granted the motion. The court then proceeded to the six-month review hearing. The court initially indicated it was inclined to follow DPSS’s prior recommendation that the court terminate its jurisdiction, award the mother physical custody and both parents joint legal custody of C.P., and transfer the matter to the family court. At that point, however, Father’s counsel told the court that Father no longer wanted the court to terminate its jurisdiction. Father’s counsel explained that DPSS had recently hired a new therapist for C.P., namely, Billie King, and Father wanted Ms. King to have an opportunity to “use her expertise” to “reunify” Father with C.P. Counsel represented that all parties were willing to stipulate to “leave jurisdiction open, and give Miss King a chance to do her job.”
Mother’s counsel told the court that C.P. was still not ready to visit with Father; however, she believed Father could be “interjected” into therapy sessions with C.P. after C.P. had some additional therapy sessions with Ms. King. The court said it would “leave the initial part” to Ms. King—that is, it would authorize Ms. King to determine when it would be appropriate to hold joint sessions with Father and C.P., but the court also said that “reconnecting with his father needs to be done as quickly as possible.” The court authorized funding for Ms. King and directed DPSS to “indicate to her that she needs to focus on reconnecting [C.P.] with his father....” Lastly, the court authorized DPSS to “have the parents participate in... [a] co-parenting program.”
At the conclusion of the May 15, 2008, hearings, the court continued C.P. as a dependent of the court and scheduled a further review hearing. Father then filed the present appeal from the court’s May 15, 2008, orders. A further review hearing was held on November 21, 2008, while the present appeal was pending. At that time, the court awarded sole physical custody of C.P. to the mother and joint legal custody to the mother and Father, and ordered “visitation to be reasonable to father” (the exit orders). The court directed the mother to prepare family law orders consistent with the court’s exit orders, and ordered that its jurisdiction would terminate upon the filing of those orders in the family court. On March 13, 2009, the juvenile court’s custody and visitation orders were entered in superior court case No. IND058909. Father has not appealed from the court’s November 21, 2008, order terminating its jurisdiction.
On April 16, 2009, this court granted DPSS’s request that this court take judicial notice of the juvenile court’s November 21, 2008, minute order.
On its own motion, this court has taken judicial notice that, on March 13, 2009, the juvenile court’s custody and visitation orders were entered in the minutes of the superior court in case No. IND058909.
On April 16, 2009, this court requested, and the parties later filed, letter memoranda concerning whether Father’s appeal from the May 15, 2008, orders was rendered moot by the juvenile court’s subsequent termination of its jurisdiction and the filing of the exit orders in the family court. DPSS and minor’s counsel filed separate letter memoranda arguing that Father’s appeal is moot, and Father filed a letter memorandum arguing his appeal is not moot. Based on the letter memoranda, this court determined, “without prejudice to a redetermination of the issue by the panel of justices assigned to appeal, that the order terminating dependency did not render this appeal moot.” We decline to reconsider whether Father’s present appeal is moot. Instead, we address the merits of his claims.
III. DISCUSSION
A. The Juvenile Court Did Not Impermissibly Delegate Its Authority Over Visitation to C.P.’s Therapist; Rather, the Court Permissibly Authorized the Therapist to Determine When, But Not Whether, Visitation With Father Would Commence
Father claims that, on May 15, 2008, the juvenile court erroneously failed to order “meaningful visitation” for Father by delegating its power and discretion to determine whether to allow visitation to C.P.’s new therapist, Billie King. We disagree.
When, as here, a juvenile court removes a child from a parent’s custody and orders reunification services for the parent, the court must order visitation for the parent unless it finds by a preponderance of the evidence that visitation would be detrimental to the child. (§ 362.1, subd. (a); In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) The visitation is to be “as frequent as possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A).) The juvenile court has the “sole power” to determine whether visitation should occur and may not delegate “unlimited discretion to determine whether visitation is to occur” to any person, including the child, DPSS or a therapist. (In re Hunter S. (2006)142 Cal.App.4th 1497, 1505; In re Christopher H., supra, at pp. 1008-1009.) The court may, however, delegate its discretion to determine the time, place, and manner of the visits. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374; In re Christopher H., supra, at p. 1009 [“Only when the court delegates [its] discretion to determine whether any visitation will occur does the court improperly delegate its authority....”].)
Contrary to Father’s argument, the court did not improperly delegate its power to determine whether visitation would occur to C.P.’s new therapist, Billie King, to DPSS, or to C.P. The court instead authorized Ms. King to determine when visitation or joint therapy sessions with C.P. and Father would commence. This was a permissible exercise of the court’s power; they retained complete discretion and oversight concerning whether visitation would occur. (In re Chantal S. (1996) 13 Cal.4th 196, 213 [order giving therapist discretion to determine when visitation may begin did not improperly delegate “absolute discretion” to determine whether visitation would occur]; In re Danielle W. (1989) 207 Cal.App.3d. 1227, 1237 [as long as the court’s delegation of its authority concerning visitation is “limited and subject to [court] supervision,” there is no impermissible delegation of authority or violation of the separation of powers doctrine]; cf. In re Julie M. (1999) 69 Cal.App.4th 41, 48-51 [court impermissibly delegated its authority in giving children “absolute discretion” to decide whether parent could visit them]; In re S.H. (2003) 111 Cal.App.4th 310, 318 [same].)
Minor’s counsel argues that Father invited any error in the court’s May 15 order authorizing Ms. King to determine when visits could resume. We agree. (In re Jamie R. (2001) 90 Cal.App.4th 766, 772 [when party persuades the court to follow a particular procedure, party is stopped from claiming the procedure is unlawful].) At the May 15 hearing, Father’s counsel withdrew Father’s long-standing request that the court terminate its jurisdiction and transfer the matter to the family court—for the express purpose of allowing Ms. King an opportunity to “use her expertise” to “reunify” Father with C.P. Thus, Father invited the court to authorize Ms. King to determine when visitation or joint therapy sessions with C.P. could commence.
In any event and as discussed, the court did not impermissibly authorize Ms. King to determine whether visitation would occur. The court’s statements at the May 15 hearing clearly indicate it had every intention of ensuring that Father’s visits with C.P. would resume, as the court said, “as quickly as possible” after Ms. King determined, subject to court oversight and further order of court, if necessary, that C.P. was psychologically prepared for the visits.
B. Father Did Not Have a Due Process Right to Cross-examine SW Greenstein
Father further claims he was denied due process at the May 15, 2008, hearing on the OSC for visitation because, in discharging the OSC, the juvenile court relied on DPSS reports that SW Greenstein authored, yet refused to allow Father to cross-examine SW Greenstein concerning the contents of those reports. We find no due process violation. As the juvenile court ruled, SW Greenstein had a Fifth Amendment right not to testify at the hearing on the OSC because Father was seeking to hold him in criminal contempt for failing to enforce the court’s visitation order. The privilege against compelled self-incrimination is available to persons appearing in civil or criminal proceedings if their statements could subject them to criminal prosecution. (See, e.g., Cramer v. Tyars (1979) 23 Cal.3d 131, 137-138.) That was the case here. Father was asking the court to impose 150 days’ jail time and $30,000 in fines upon SW Greenstein.
Furthermore, even if SW Greenstein was not protected by the Fifth Amendment, the court properly refused to allow Father to cross-examine him concerning the contents of the reports he prepared for DPSS. Due process “requires, in particular circumstances, a ‘meaningful opportunity to cross-examine and controvert the contents of the report.’ [Citations.] But due process is not synonymous with full-fledged cross-examination rights. [Citation.] Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. [Citation.] The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.] Even where cross-examination is involved, the trial court may properly request an offer of proof if an entire line of cross-examination appears to the court to be irrelevant to the issue before the court. [Citations.]” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.)
At the hearing on the OSC, the issue was why Father had not been allowed to visit more often with C.P. in view of the court’s order for a minimum of weekly visits in a therapeutic setting. The DPSS reports explained that weekly visits did not occur because C.P. did not wish to see Father. In addition, in March 2007, C.P’s original therapist, Carol Bayer, was no longer willing to facilitate visits in her offices. Thereafter, the reports indicated that Dr. Chalgujian attempted to facilitate visits in her offices, but C.P. was depressed and anxious in Father’s presence and Father failed to adhere to the doctor’s “therapeutic limits” when, during a visit at his home, Father allowed C.P. to have contact with children in his neighborhood. The reports thoroughly explained why weekly visits did not occur. It is therefore difficult to see what additional information—of significant probative value—Father’s cross-examination of SW Greenstein would have revealed concerning why Father was not allowed to visit more often with C.P.
Lastly, any error in refusing to allow Father to cross-examine SW Greenstein is harmless beyond a reasonable doubt. (In re Mark A. (2007) 156 Cal.App.4th 1124, 1146 [applying Chapman standard to federal constitutional error in juvenile dependency proceeding].) Father has not demonstrated a reasonable possibility he would have realized a more favorable result—either in the form of more frequent or liberalized visits with C.P. after May 15, 2008, had he been allowed to cross-examine SW Greenstein.
Chapman v. State of California (1967) 386 U.S. 18.
IV. DISPOSITION
The May 15, 2008, orders are affirmed.
We concur: McKinster, Acting P.J., Gaut, J.