Opinion
C042923.
11-13-2003
In re D.I. et al., Persons Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.I., Defendant and Appellant.
T.I. (appellant), the mother of D.I. and M.I. (the minors), appeals from orders of the juvenile court awarding sole custody of the minors to their father, granting appellant visitation with the minors, terminating dependency jurisdiction, and directing transmission of the orders to the superior court. (Welf. & Inst. Code, §§ 362.4, 364, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant challenges the visitation order and contends the juvenile court violated her right to due process of law by rendering dispositional orders nunc pro tunc.
We agree with appellant that the juvenile court erred in prohibiting future motions to increase visitation unless the minors therapist believed increased visits would not be detrimental. Accordingly, we order that condition of visitation stricken. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 13, 2001, the Human Services Agency (HSA) filed amended original juvenile dependency petitions pursuant to section 300 on behalf of the minors, ages six and three. Those petitions alleged in part that appellant and the father of the minors, who shared physical and legal custody of the minors, were "involved in a bitter and conflicted custody dispute in Family Court in which [appellant] has alleged that the father is molesting the children and the father has alleged that the allegations of molest are induced by the mother who is mentally ill." According to the petitions, as a consequence of that dispute, the minors were suffering or were at a substantial risk of suffering serious emotional damage. The petitions also averred that "neither parent [was] presently capable of providing appropriate care so as to eliminate the risk of serious emotional damage to the children."
The juvenile court sustained the petitions as amended and adjudged the minors dependent children. The court also ordered the minors removed from appellants physical custody and placed in the home of their father under the supervision of HSA. The court granted appellant both supervised visitation with the minors and reunification services.
According to reports by the social worker, at visits appellant greeted the minors with enthusiasm but was unable to control their behavior. The social worker opined that appellant had failed to demonstrate she understood how to meet the needs of the minors. Moreover, on numerous occasions appellant "needed to be reminded . . . not to question the children about their interaction with their father, not to discuss the case with the children, and not to promise them they will be coming home soon." The social worker also noted the minors behaved more appropriately after appellant left the visits.
Appellant was visiting the minors for one hour weekly under HSA supervision. Although the juvenile court had given HSA the discretion to increase visitation, HSA refused to do so, believing extended visits would be detrimental to the minors. According to the social worker, although appellant had participated in various services, she was unable or unwilling to apply what she had learned. In the meantime, the minors were doing well in the custody of their father. Therefore, HSA recommended termination of appellants reunification services, an award of custody to the father, and termination of the dependency.
At the review hearing that is the subject of this appeal, social worker Lyn Geist testified appellant had not benefited from services. According to Geist, appellant was unable to control the minors at visits. Appellant told the juvenile court she had improved considerably and believed she had benefited from services. According to appellant, her limited visitation time made it difficult for appellant to establish appropriate boundaries for the minors. Appellant planned to continue engaging in services in the future.
At the conclusion of the review hearing, counsel for appellant argued against restricting appellants visits with the minors and suggested appellant and the minors father continue to share custody of the minors. Counsel for appellant also argued that unless the juvenile court found the minors would suffer a substantial risk of detriment, it must return the minors to appellant on a shared custody basis with the minors father.
In a written decision filed December 16, 2002, the juvenile court modified its previous dispositional orders, nunc pro tunc, finding appellant and the minors father had shared custody of the minors throughout the proceedings. The court then awarded sole legal and physical custody to the minors father and granted appellant two hours of weekly visitation with the minors, to be "supervised by the father or any other third person of his choice . . . ." The court granted the father the right to "liberalize" appellants visitation and also stated as follows: "The court shall not entertain a motion to increase visitation unless accompanied by a declaration from the childs [sic] therapist stating the increased visitation to the child would not be detrimental." Finally, the court directed that "this order and the conforming Family Law order be filed in the existing Family Law file . . . ."
DISCUSSION
I
Appellant contends the juvenile court improperly delegated discretion to the father of the minors to liberalize visitation and to the minors therapist to determine whether the superior court could increase visitation. According to appellant, under the circumstances of this case, it is unlikely appellant and the father will agree to modify visitation, and the order requiring the participation of the minors therapist effectively prevents appellant from obtaining increased visitation with the minors in the superior court. Therefore, appellant argues, the prejudice to her is substantial.
While the juvenile court has the power and responsibility to define visitation between a noncustodial parent and the minor children, the court need not specify all the details of that visitation. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374 (Moriah T.).) It may delegate the management of the details of visitation, such as time, place, and manner. (Id. at p. 1374; In re Chantal S. (1996) 13 Cal.4th 196, 213-214 (Chantal S.).) "Only when a visitation order delegates . . . the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine." (Moriah T., supra, 23 Cal.App.4th at p. 1374.)
Appellant relies in part on In re Randalynne G. (2002) 97 Cal.App.4th 1156 (Randalynne G.) to support her claims. However, the order at issue in Randalynne G. was quite different from the orders in this case. The order in Randalynne G. provided only that "`[v]isitation between the child and mother and father shall be as directed by the legal guardian in this case." (Id. at p. 1163.) The court found that rather than permissibly delegating the details of visitation, such as time, place, and manner, the order "left the entire issue of visitation in the hands of the guardian." (Id. at p. 1165.)
Appellant also relies heavily on In re Julie M. (1999) 69 Cal.App.4th 41. In that case, the juvenile court gave the children the discretion to determine whether they would visit their mother. Reversing that order, the appellate court concluded the children could not be delegated such judicial power. (Id. at pp. 47, 50.)
In this case, the visitation orders constitute an unconditional grant of visitation to appellant. Appellants visits are subject only to the custodial parents rights to supervise the visits and increase them. The orders do not give the minors father the right to determine whether visits should continue or the right to limit them. If appellant believes it is in the best interests of the minors to increase her visits and the father disagrees with that determination, appellant is not precluded from filing a motion in the superior court seeking such an increase. Such orders are consistent with the guidelines established in Chantal S., supra, 13 Cal.4th 196 and Moriah T., supra, 23 Cal.App.4th 1367. There was no improper delegation of visitation discretion to the father of the minors.
The order granting the therapist of the minors the power to prevent appellant from seeking increased visitation in the superior court does run afoul of the visitation delegation rules contained in the decisions interpreting juvenile court visitation orders. Although the order does not empower the therapist to end visits, it does accord the therapist the authority to prevent appellants access to the court. Such an order cannot stand. "Although a court may base its determination of the appropriateness of visitation on input from therapists, it is the courts duty to make the actual determination. . . ." (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1478.)
We shall strike the provision requiring the therapists permission before the juvenile court may entertain a motion seeking increased visitation.
II
Claiming the record contains no evidence of a risk of harm to the minors, appellant asserts the juvenile court abused its discretion in rendering restrictive visitation orders. According to appellant, the record reflects the visits went well. Appellant also suggests the limited visitation granted her is inconsistent with the best interests of the minors and argues the orders limiting her visitation with the minors prejudiced her interests.
When a child is placed in foster care, the juvenile court must order reunification services to be provided as soon as possible to reunify the family "if appropriate." (§ 319, subd. (e).) When reunification services are ordered, visitation must be "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) The corollary to this mandate is that visitation may be limited if the juvenile court finds, for example, that unrestricted visitation is not in the childs best interest. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 838-839.)
Here, contrary to appellants claim, the record contains substantial evidence that the minors were at a great and continuing risk of detriment if appellant had unrestricted contact with the minors. The social worker opined that appellant was unable to establish boundaries for the minors and provided numerous examples of the problems occurring during appellants visits with the minors. The record suggests that, despite her good intentions and the obvious affection she possessed and displayed for the minors, appellants lack of understanding of the needs of the minors ill-served their proper development. There was no abuse of discretion in the juvenile courts orders restricting appellants visits with the minors.
III
Appellant contends the juvenile court violated her right to due process of law by the improper use of a nunc pro tunc order that purported to correct dispositional orders removing the minors from appellants custody and granting appellant reunification services. According to appellant, the court lacked the power to promulgate the legal fiction that she had continued to enjoy joint custody of the minors with their father throughout the dependency proceedings. Appellant argues she was prejudiced by the courts orders because she had believed that, if she completed her service plan successfully, the minors would be returned to her custody. On the other hand, appellant suggests if she had known the court might issue different orders, she could have appealed the courts order awarding physical custody of the minors to their father. Appellant seeks reversal of the custody order.
As appellant doubtless recognizes, to be entitled to reversal of the juvenile courts custody order, she must show she was prejudiced and a miscarriage of justice resulted. (Cal. Const., art. VI, § 13.) Here, the basis of appellants claimed prejudice is as follows: The juvenile courts original orders caused appellant to rely, to her detriment, on the hope that by benefiting from services, she would be re-established as a custodial parent of the minors. As we shall see, on the record of this case, appellant has shown no prejudice. Accordingly, even assuming for purposes of argument that the juvenile court erred in rendering orders nunc pro tunc, appellants claim must fail.
The following lengthy passage from the social workers report summarizes the problems in this case and the detriment to the minors resulting from their interactions with appellant and also demonstrates why appellant has failed to establish that, under any set of circumstances, she would have succeeded in resuming physical custody of the minors: "[Appellant] has been compliant with services, even though she thinks that most things asked of her are `stupid. She has been better about her comments during visits regarding the childrens father, and the case in general. However, she will still occasionally refer to him as `that man and make negative comments about him being the cause of everything. [¶] The undersigned has worked hard with [appellant] in the attempt to assist her in setting boundaries and limits with her children. Although, she is verbally able to state what she believes the minors are in need of, she cannot demonstrate the ability to provide for their needs. She has the need to please them at all costs and will cater to their tantruming [sic] behaviors. During a visit on January 3, 2002, the minor, [D.], was drawing her mother a picture and told her mom not to look. After several minutes passed, [appellant] forgot she was not to look and told her what a beautiful picture it was. [D.] began to scream at her mother, crying that her picture was now ruined. [Appellant] spent the next five minutes saying things such as `honey, its beautiful. Please finish it. Mommy would like a picture. Each time the mother commented in such a way, [D.] screamed `NO! Its ruined. It was clear that the mother did not know how to respond to this behavior. [Appellant] sat quiet for a few minutes watching [M.] who was also drawing. [Appellant] commented to [M.] that she really liked his picture. At this point, [D.] who had resumed drawing, slammed down her crayon and started crying loudly. [Appellant] immediately responded by going to her and hugging her saying `Oh, honey, Mommy likes all your pictures, too. [D.] continued to cry. [Appellant] continued to hug and baby her. [M.] then became upset and the last five minutes were spent with mom reassuring them she loves them and hugging and kissing them all the way to the door. [¶] There are too many examples such as this to cite. [Appellant] does not control the visits with authority in any manner. She can not [sic] understand why the children whine and cry and are [sic] not able to give the undersigned any suggestions on how she could improve the situation. She believes they act up because they miss her and they need her more often. [¶] Although she has participated in the components of the case plan, [appellant] has not made any changes that would make the supervising social worker confident that the minors would be emotionally safe in an unsupervised setting. On April 25, 2002, the undersigned had a lengthy conversation with [appellant]. At this time, the report recommendations and the mothers progress were discussed. This conversation was more productive than any in the past. The undersigned explained that the first goal was for unsupervised visits. [Appellant] was again encouraged to participate in Interactive Parenting and continue in therapy."
From our examination of the record, it is apparent that appellant failed to show that she had the ability to develop a consistent and safe parenting style nor was she able to accept responsibility for the necessity of dependency proceedings in this case. As a result, the minors would continue to be at risk in her care. This reality is seen most clearly during appellants visits with the minors, which as we have seen frequently were chaotic and upsetting to the minors.
In sum, as the record in this case contains ample evidence that the minors would be at a substantial risk of suffering detriment if they were returned to appellant, appellant has shown no prejudice in the nunc pro tunc orders rendered by the juvenile court. Moreover, appellant retains the right to seek to modify the visitation or other orders in the superior court on a proper showing. There was no due process violation.
DISPOSITION
The order requiring a declaration from the minors therapist before a motion to increase visitation may be entertained in the superior court is stricken. As so modified, the judgment is affirmed.
We concur: DAVIS, J., and HULL, J.