Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Nos. DP020219, DP020220, DP020221, DP020222, Cheryl Leininger, Judge.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant A.M.
Seth M. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant L.M.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Senior Deputy County Counsel, Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A.M. (mother) and L.M. (father) (collectively, parents or the parents) appeal from the judgment declaring their four children to be dependents of the juvenile court. They contend: (1) insufficient evidence supports the court’s jurisdictional findings and removal order; (2) three of their four children were denied the right to independent counsel; and (3) the case must be remanded for a new visitation order. As to this last contention, we agree. In all other respects, we affirm the judgment.
FACTS
In February 2010, father was laid off from his job as a construction foreman and carpenter. In March, the paternal grandmother (in whose home the family lived) passed away and left her house to father. In June, mother was diagnosed with a benign brain tumor and underwent surgery to remove it.
All dates refer to the year 2010.
In August, the events occurred which led to the removal from the home of the four children: then 15-year-old J.M., 12-year-old M.M., six-year-old Ka.M., and two-year-old Kr.M. On August 21, J.M.’s uncle picked up J.M. to take him fishing. Father yelled J.M. could not go fishing because he had not mowed the lawn. J.M. said it was too hot to work outside. Father raised his fist and said, “Don’t you talk back to me!”
On August 23, at about 9:45 p.m., J.M. returned home from his aunt’s house after being away for two days without letting parents know he was planning to come home. Father felt this was disrespectful and that J.M. should not bother mother when she was having problems. Father said to J.M., “What are you doing here? Get out of my house!” Father told mother, “Why are you hiding him? I told you I didn’t want him to be here.” Mother said, “This is his house too, ” and told father to leave if he did not want to be around J.M. Father was angry at J.M. “for not mowing the lawn and yelled at him for several minutes, ” telling him to “shut the fuck up” and that he was “an idiot.” The next morning, J.M. mowed the lawn and then watched television with mother in the living room. Father did not like the way J.M. had mowed the lawn. Father called J.M. into father’s room. There, father was sitting on the bed. Father grabbed J.M. by the throat, “slammed” him onto the bed, and held him there for at most 10 seconds while yelling at him. J.M. weighs 98 pounds while father is over six feet tall and weighs about 300 pounds. The contact hurt J.M.’s neck where father had his finger, but the incident “didn’t hurt that bad” because it happened on the bed. J.M. did not notice any signs suggesting that father had been drinking. Mother came into the room and got between father and J.M. Mother hit father. Father pushed her out of the way. Mother ended up on the floor, crying. Father said mother was crazy. Father yelled, “I told you I don’t want him living here. I told him, I don’t want him here.” Father told mother to get out. J.M. got mother to go in the living room. The girls came out of their room “to see what was happening.” J.M. was sure that if mother had not intervened, “father would have beat[en] him up.”
Mother shared a room with Ka.M. and Kr.M.
The next day, mother had a doctor’s appointment at the hospital. Father phoned 911 to transport mother to the hospital. He also called mother’s sister. According to father, he phoned mother’s sister to ask her to come over and help mother. According to mother, he phoned mother’s sister because he did not want to have anything to do with mother anymore. Mother’s sister yelled, “You finally did it! You got [mother] committed to the psyche ward!” Father believes mother’s sister thought he was trying to take the kids away from mother. Mother was admitted to the hospital for depression, suicidal thoughts, and seizures.
At around 1:00 a.m. on August 26, family friends and relatives convinced J.M. to report to the police what had happened. J.M. was taken into protective custody. The investigating social worker and police officer initially determined there was no cause to remove the other three children from the home, but a supervisor overruled that decision. The four children were detained and placed in the home of their maternal grandmother.
Orange County Social Services Agency (SSA) alleged the children came within Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect).
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
The record includes the following additional evidence. Father had been physically and verbally abusive to J.M. for as long as J.M. could remember. Father would mostly grab him by the arms and neck, hit him in the back and head, and throw him to the ground. This rarely left any marks or bruises. Father did not punch him with a closed fist, but had slapped him on the face. When J.M. was around 10 years old, his father had once or twice made him sit in a cold bath as punishment. The paternal grandmother had told father to stop this form of punishment, so father ceased. Father’s niece, who had lived with the family a few times, reported father once made J.M. get in a bathtub full of water with his clothes on. Father’s abuse of J.M. had increased since the paternal grandmother’s death and escalated when mother went into the hospital. On several occasions, father had kicked J.M. out of the house, once at 4:30 a.m. J.M. would return home to check on mother because he was concerned about her. Father made mother clean the house and scrub the floor when she was supposed to be resting and told mother she was not sick and was “faking it.” J.M.’s wish for his family was that father would not get mad so easily and that parents would stop fighting. J.M. wanted to stay at his maternal grandmother’s house, but said he would consider living with parents if father got some help.
Mother acknowledged J.M. has “a lip on him.” According to father, J.M. “bullies, intimidates, and demeans” mother and the other children on a regular basis and has started stealing things. M.M. reported J.M. “slams things around the house, yells at everybody” (including his siblings), does not “do his chores or anything else around the house, ” and is “the problem” in the house because he is sometimes a “jerk.” SSA reported J.M.’s most recent grades were poor — one C-, two D’s, and 3 F’s. J.M. had 12 school discipline reports for the previous school year — nine for failing to serve detention, two attendance violations, and one defiance of authority. At trial, J.M. said father yelled at him about “chores and talking back, ” and admitted he (J.M.) sometimes purposely did his chores wrong. J.M. acknowledged he sometimes nags mother until she says yes (to the point that he annoys her) and that his parents fight when mother sticks up for him.
J.M. reported that his three siblings “are treated very well” by father, but also said that father often gets mad at the girls (although not at M.M.). Father gets mad at J.M. “significantly” more often than at the other children. J.M. had never seen his father hit his siblings. He had seen father spank Ka.M. and Kr.M. J.M. felt mother could protect the other children from father. J.M. felt it was safe for the girls to go home. He was not sure about M.M. going home because father makes M.M. “do everything, ” including cleaning, making food, and taking care of the girls. When M.M. got tired of doing this, he and father would argue. According to J.M., while mother was in the hospital, a nurse said she was going to report that father slapped M.M. J.M. had never seen father really hurt M.M., but had once seen father pick M.M. up and put him on the bed and keep him there for a long time.
M.M. told the social worker, “My parents argue a lot, but I don’t have problems with my father because I am respectful and [J.M.] doesn’t do what my father says and he is disrespectful.” M.M. said that he and his siblings had never been physically abused. He feels safe living with parents. He reported father disciplines the children by yelling at them or putting them on time out. Since mother’s surgery, father had been “babying” her and thought she was faking seizures. M.M. wished father would be nicer to everyone, i.e., mother and all the children. When interviewed at the maternal grandmother’s house in October, M.M. said J.M. argued with him and called him names.
Ka.M. had never seen any physical abuse of anyone in the home and said she was not fearful of her parents and wanted to live with them. Mother disciplined her with time outs or spanking. Father disciplined her by yelling at her or sending her to her room, but did not spank her. Father yelled at J.M. frequently, but she had not seen any physical contact between them. The house was “quieter” whenever J.M. was gone. She said her parents yell at each other, but she had not seen any physical interaction between them. Ka.M. wished her parents would be nicer to each other and that J.M. would be nicer to everyone in the family.
When the social worker interviewed young Kr.M., she was crying and went to father easily.
Mother reported father had been “really mean” to the children in the past year and had started yelling at them. But he had never treated them as badly as J.M. and she had never seen him hit the three younger children. Mother said M.M. was afraid of father because he did not want to be treated like J.M. Father treated M.M. like his “personal slave, ” but did pay him for certain chores. Mother did not want to divorce father, but wanted him to “get better.”
Father’s brother and sister-in-law reported that M.M. was responsible for caring for the girls.
As to domestic violence, mother stated that father had once pushed her against a wall and would not let her out of the room. He slapped her around when she was pregnant with Ka.M. He often kicked her in the buttocks. A family friend reported she had seen father kick mother on the bottom so frequently that the friend finally confronted him about it. Mother reported that after her surgery on June 14, father forced her to have sex with him. Father was “verbally mean” to her, called her a whore and a loser, and said she was not trying to get better. Mother reported she tried to leave father many times, but he made her think she “had no place to go”; also, she loved her husband. J.M. reported that he had never seen his father hit his mother, but had seen him push her. He had seen mother hit father twice. The parents argued about money and bills and the house not being clean. Ka.M. and Kr.M. sometimes cry when the parents fight or when father yells. Father’s brother and his wife reported “father had tried to intimidate people for years.”
As to father’s alcohol abuse, mother reported she thinks father is an alcoholic because he drinks every day, but the alcohol makes him “more mellow”; however, she also reported she feared him “because he has been in many fights while he has been drunk.” J.M. reported that father always has beer in his room and in the refrigerator, but J.M. never saw any drugs in the house. J.M. said father “always has a 32 [ounce] beer with him.” J.M. felt drinking makes father more aggressive and causes him to get mad about little things. J.M. could tell when father has been drinking because father sleeps a lot and then smells like alcohol when he comes out. M.M. reported that father drinks, but did not know how much. Father’s brother and his wife reported father has an alcohol problem. Mother’s relatives said father had taken mother’s pain pills.
In October, mother’s neurologist wrote: “From a Neurosurgical perspective there are absolutely no restrictions or concerns regarding any daily activities or the care and interaction with her children.” Around October 29, however, mother was hospitalized for extreme depression and a nervous breakdown. The hospital released her on November 1, finding she was stable. Mother reconciled with father on that date and resumed living with him.
Father had been attending child abuse counseling and parenting/anger management classes. He had been drug testing with no positive tests.
Father’s visits with M.M., Ka.M., and Kr.M. had been going very well. The three children were always excited to see father, and father looked happy to see them too. J.M. did not attend.
The hearing on jurisdiction and disposition was held over several days in November 2010. Father, mother, and J.M. testified. Much of J.M.’s testimony is included in the above factual recitation.
At trial, mother recanted most of her allegations against father. Her whole family was against her at that time, as well as all her friends, because of what mother’s sister was telling them. Mother testified that during the August 23 incident, father called her a “fucking whore, ” so she “pretty much beat him up.” J.M. tried to get her out of the room because she was out of control. Once, father grabbed her by both of her arms because she was trying to hit him. Mother testified she lied to the social worker because she thought she could get her children back that way. Her family and friends were telling her “a million things” and she was being pulled by everyone and confused. She was told it was either father or her who would get the children and if she went back with him she would lose the children permanently. She told the social worker father is an alcoholic because she thought it would make her look better and she would get the children. J.M.’s being lazy and disrespectful, and mother’s enabling the behavior (such as doing J.M.’s chores for him, hiding his bad grades from father, and letting J.M. “get away with a lot of stuff”), are the main reasons father and J.M. fight.
Father denied most of the allegations. He claimed mother’s sister was the “driving force of this, ” because she was angry that he disclosed his belief the maternal stepfather had molested mother. He stated he has never physically disciplined any of the children. He denied pushing J.M. down on the bed or holding his neck or throwing him to the ground. He admitted he did once call mother a whore or a loser and had apologized to her for his words. He sometimes needed to grab J.M.’s arms because J.M. would pick up things and throw them, slam things around, and lose control. Father claimed he only drank socially, on the weekends, and had stopped drinking alcohol after the children were taken away. He has been testing since September 8 with no missed tests or positive tests. He testified he needs marriage and parenting counseling, but he does not have an anger management problem or child abuse problem. He had nonetheless enrolled in anger management, parenting, and child abuse classes and on his own initiative was participating in counseling.
Mother testified she was never molested by her stepfather, but had told father that in order to get out of the house. Prior to trial, she stated father had often threatened her that if she left with the children, he would allege the stepfather had abused her, so as to keep the children from living with the maternal grandmother.
The court found true by a preponderance of the evidence the jurisdictional allegations of the petition, as amended. The court removed the children pursuant to section 361, subdivision (c)(1), and vested custody of them with SSA, finding by clear and convincing evidence that vesting custody with either parent would present a substantial risk of detriment to the physical health and safety and emotional well-being of the children. The court ordered reunification services for both parents, including for father a 52-week batterer’s treatment program, drug and alcohol counseling, and anger management counseling, and for mother counseling for domestic violence as an aggressor and victim. The court approved the visitation plan set forth in SSA’s October 4, 2010 report.
DISCUSSION
Substantial Evidence Supports the Allegations of SSA’s Petition and the Removal of the Children from Parents’ Custody
Parents challenge the sufficiency of the evidence to support (1) the court’s true findings on SSA’s jurisdictional allegations, and (2) the court’s removal of the children from parents’ custody. They argue the evidence was insufficient as to J.M. and as to the other children. They contend that “serious physical harm” within the meaning of section 300 requires something more substantial than age-appropriate physical discipline. They note that section 300 expressly states it does not “prohibit the use of reasonable methods of parental discipline.” They further argue that even if substantial evidence supports the court’s findings that the children, or any of them, come within section 300, subdivisions (a) and (b), any erroneous factual findings under the petition should be stricken.
We review the relevant law on a juvenile court’s declaring children to be dependents of the court and removing them from a parent’s custody. Section 300 describes persons who are subject to the juvenile court’s jurisdiction. A child comes within subdivision (a) of section 300 if the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent.... For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent... which indicate the child is at risk of serious physical harm. For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”
A child comes within subdivision (b) of section 300 if the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent... to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent... to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent... to provide regular care for the child due to the parent’s... mental illness, developmental disability, or substance abuse....” As with subdivision (a) of section 300, a court may find a substantial risk of serious future physical harm or illness for purposes of subdivision (b) “based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the minor’s or the minor’s siblings, or a combination of these and other actions by” a parent. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.)
“A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence” that there “is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.” (§ 361, subd. (c)(1).) “The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “In this regard, the court may consider the parent’s past conduct as well as present circumstances.” (Ibid.) “Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order.” (Id. at p. 918.)
“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for both the jurisdictional and dispositional findings.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) “If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence.” (In re Megan S. (2002)104 Cal.App.4th 247, 250-251.) “The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (J.K., supra, 174 Cal.App.4th at p. 1433.) “‘All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) “‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)
Here, the section 300, subdivision (a) count alleged each child had suffered or was at substantial risk of suffering serious physical harm or illness inflicted nonaccidentally by a parent. As to J.M., the supporting factual allegations were: (1) around August 23, father physically abused J.M. by grabbing him “by the neck and slamming him on the bed, holding him down, while screaming and yelling” at him, and “in the past, ” father had grabbed J.M. “by the arms and thrown him to the ground, ” causing bruises to J.M.’s arms and hip; and (2) father was “verbally and physically abusive to [J.M.] on an ongoing basis” and had “kicked him out of the house several times and told him not to come back, ” causing him to suffer significant emotional damage.
As to the other children, the factual allegation supporting the section 300, subdivision (a) count was that M.M., Ka.M., and Kr.M. were at risk of “being physically abused by their father due to the incident of physical abuse suffered by [J.M.] and the mother’s inability to protect the children.”
The section 300, subdivision (b) count alleged each child had suffered, or was at substantial risk of suffering, serious physical harm or illness, as a result of (1) parent’s failure or inability to adequately supervise or protect the child, (2) parent’s willful or negligent failure to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, (3) parent’s willful or negligent failure to provide the child with adequate food, clothing, shelter, or medical treatment, or (4) parent’s inability to provide regular care for the child due to parent’s mental illness, developmental disability, or substance abuse.
The jurisdictional facts alleged for the section 300, subdivision (b) count included the section 300, subdivision (a) factual allegations, as well as the following: (1) the children had been exposed to domestic violence between mother and father, including physical and verbal abuse, which placed the children at risk of physical and emotional harm; (2) father has an unresolved alcohol problem which impairs his ability to effectively care for, parent, and protect the children; (3) mother had undergone surgery to remove a brain tumor in June, the tumor was growing back, mother suffered ongoing seizures, and her medical condition impaired her ability to parent and provide for the children; (4) on August 24, mother was hospitalized due to seizures, depression, and suicidal thoughts, and her mental health is an unresolved problem that impairs her ability to provide ongoing daily care and control of the children; and (5) father has a long history of substance abuse, including alcohol, an unresolved problem for which he has no documented proof of completion of a substance abuse program thereby placing the children at risk of neglect and abuse.
At trial, the petition was amended to delete allegations father uses cocaine and the house was unsafe and unsanitary, and to specify domestic violence was mutual between the parents. On appeal, father does not expressly dispute the fifth factual allegation’s reference to “substance abuse.”
At trial, counsel for SSA argued strenuously that the evidence supported the petition’s jurisdictional allegations as to J.M. and that he should not be returned to the home until parents had the benefit of reunification services. But as to the other children, she candidly conceded some uncertainty: “Now the question about whether there is enough evidence before the court to keep [the other three children] out of the home, I believe is a more difficult one to answer. On the one hand, I concede that [J.M.] and even the siblings themselves have either testified or reported that the relationship between [J.M.] and the parents is different than the relationship they have with the parents. [¶] [T]he reports and the testimony paint [J.M. as] the problem child, maybe a little bit of the rebellious... black sheep, and that the dynamic between father, mother and [J.M.] is really different from the dynamic with the other [siblings]. [O]ther than some vague recollections that [J.M.] had about some spanking to the younger girls and perhaps... an incident... that he believes father may have slapped [M.M.] while at the hospital, I would submit to the court as to whether that would suffice in establishing that there has actually been a physical abuse of [M.M., Ka.M., and Kr.M.] [¶] And we would also submit as to whether the court would find that sufficient to establish that even if there hadn’t been physical abuse to the three younger siblings, that there would nonetheless be a substantial danger to their physical health, safety, and protection. [¶] However, I think there is a stronger argument to be said that there is danger to their emotional well-being if left in the house[, ] and that’s primarily because of the... dysfunctional and domestically violent relationship between the mother and the father. [¶] Now I have no doubt that they love each other dearly but I think that there are problems within their relationship that cause them... to yell at each other and fight often in the presence of their children. And, granted, a lot of that probably involves [J.M.] and their respective parenting of [J.M.] but I think that, assuming the court makes an out-of-home order for [J.M.], I don’t think [J.M.’s] absence from the home will suddenly magically resolve the conflict between Mom and Dad. [¶] I find it hard to believe [that August 23] was the first time that things not only became... verbally aggressive between them but physically aggressive between them[, ] and I think that dynamic in the home definitely puts a risk to the emotional well-being of the three younger children as well.”
After SSA’s counsel presented this argument, the court asked counsel to address SSA’s factual allegation that M.M., Ka.M., and Kr.M. were at risk of being physically abused by father due to the August 23 incident and mother’s inability to protect the children.
SSA’s counsel replied: “I think that’s... more of a difficult question to address as opposed to the risk to [J.M.] I think the evidence shows that father is aggressive, father does perhaps have a temper issue and that he has... been physically abusive to [J.M.] But I do also concede [there] are reports that that dynamic with [J.M.] might not necessarily exist with [the other children]. [¶] And it appears that [the other children], unlike [J.M.], are not afraid of seeing dad or are not refusing to visit dad. And I understand that they have been visiting with dad since they have been in out-of-home care. [¶] And even [J.M.] has indicated that he believes [the girls] would actually want to go home. So given that, I would say that while I think the physical abuse to [J.M.], coupled with the dynamic between the mother and the father being extremely conflictual, coupled with also the reports that father... when he’s drinking gets even more aggressive and seems to lose his temper even more, while I believe that presents a risk that they too may one day when they grow into rebellious teenagers perhaps be physically abused by dad, whether that’s a substantial risk I’m not sure that we have established that by a preponderance of the evidence, but I would submit that issue to the court at this time.”
This question concerning the younger children, which obviously troubled the court and SSA’s counsel, is now before us. We address first the easier issue of whether the jurisdictional and dispositional findings as to J.M. are supported by substantial evidence. Although parents dispute whether J.M. was indeed at substantial risk of “serious physical harm, ” such a jurisdictional finding may be properly based on the manner of a parent’s infliction of a less serious injury on the child and/or a history of repeated inflictions of injuries. As to the court’s dispositional order removing J.M. from parents’ custody, the statutory standard encompasses the minor’s emotional and physical well-being. The evidence provided by J.M. and prior to trial by mother, which the court found to be credible, is more than enough to support the court’s jurisdictional and dispositional findings as to him. (The court found J.M. was “absolutely credible, ” mother’s pretrial statements to SSA were credible, and parents’ trial testimony was not credible.)
As to M.M., there was evidence father may have slapped him at the hospital, had once kept him on the bed for a while, and had recently yelled at him, making M.M. cry. J.M. was “pretty sure” he had seen father grab M.M. and throw him dowN.M.M. sometimes got tired of doing all the tasks father demanded of him and would argue with father. M.M., who was 12 years old at the time of the hearing, was nearing the adolescent years about which SSA’s counsel expressed concern.
We turn to the question of whether Ka.M. and Kr.M. were at substantial risk of suffering serious physical harm under section 300 inflicted nonaccidentally by father or resulting from either parent’s inability to parent and protect them due to father’s alcohol problem, mother’s medical condition, or parents’ mutual domestic abuse. Section 361’s removal provisions come into play only if the court has adjudged a minor a dependent child under section 300.
“Although the evidence is by no means overwhelming, given the deference we must accord a juvenile court’s factual findings [citation], we conclude there is substantial evidence to support the jurisdictional findings” as to the girls. (In re Basilio T. (1992) 4 Cal.App.4th 155, 169, superseded by statute on a different point as stated in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1243.) They “were put in a position of physical danger from [domestic] violence, since, for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg, or by [a parent] falling against them.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194, fn. 9 [minor’s finger and foot were cut “by a glass vase broken during an altercation between” the father and stepmother].) J.M. testified father spanked the girls, but father denied physically disciplining any of the children, causing the court to be concerned about father’s blanket denials: the court noted father “does not believe he has an anger problem, a child abuse problem, domestic violence problems, or substance abuse problems....” The court further observed father abused alcohol, which caused him to become more angry and aggressive, and “use[d] fear, intimidation and force to control and command behavior and respect rather than appropriate parenting skills.” Father’s yelling had intensified in the past year. His escalating anger and aggression “plac[ed] all of the children at risk.” Based on father’s infliction of injuries on J.M. and his conduct toward the other children, the court concluded “the other children would become more of a target of his anger, and that there is a substantial risk to all of the children that they all will suffer serious physical [and] emotional harm in the future.” The court noted mother appears “to be emotionally needy and fragile” and believed “that father completely controls, manipulates and influences mother, and that mother is totally dependent on father.” The court observed it is clear mother loves father and they remain together. The court did “not believe that mother is able to care for her other children or to protect the children from father even if they were to be placed with her alone.”
The court explained to parents: “I know that father and mother have been under a lot of stress over this last year.... And I’m sorry if my ruling seems as though it’s harsh. I believe that both mother and father love their children and want to be good parents and have a healthy marriage and healthy family, and I believe you can be, and I think that you’re starting to address some of the problems.” The court expressed hope the parents would “both embrace the reunification plan so [they could] be reunited with [their] children as soon as possible.” The court believed the parents “are willing to do the reunification plan and willing to work hard on it, ” and it would be wise to see how they were doing in 90 days.
For the reasons expressed above, each of the 10 jurisdictional factual findings (as amended) is supported by substantial evidence.
The Court Did Not Err by Appointing the Same Minors’ Counsel for J.M. and His Siblings
Parents contend the three younger children were denied their statutory right to independent and competent trial counsel. Parents note that M.M. felt safe living with them, Ka.M. said she wanted to live with them, and Kr.M. was too young to express her wishes. Parents assert the court’s failure to appoint separate counsel for the three younger children prejudiced the children because minors’ counsel failed to advocate that the younger children should be allowed to return home.
At trial, minors’ counsel argued, as to the three younger siblings, there was evidence father had started yelling at them and thus his conduct toward J.M. was “starting to spill over to” the other children. She queried whether this meant the other children would now become targets for father. She further argued, as to the dispositional allegation, there was a “substantial danger to the physical health, safety, protection, or physical or emotional well-being of all four children if they [were] returned home” because mother had been unstable and suicidal just three and a half weeks previously and there were no reasonable means to protect the children from this danger. Counsel had read the reports on father’s visitation with the three younger children and agreed the visits went very well and were “really super.” She continued: “But this is a situation where they are playing, where they are having fun. This isn’t a situation where rules have to be followed and rooms have to be cleaned up and chores have to be done....” Minors’ counsel submitted to the court whether these considerations rose to the level of clear and convincing evidence as to the three younger children.
A primary responsibility of court-appointed minors’ counsel is “to advocate for the protection, safety, and physical and emotional well-being of the child.” (§ 317, subd. (c).) Counsel shall not represent another party “whose interests conflict with the child’s interests.” (Ibid.) Counsel “shall not advocate for the return of the child if, to the best of his or her knowledge, that return conflicts with the protection and safety of the child.” (§ 317, subd. (e).) “[C]ounsel’s paramount duty is to serve the minor’s best interests, rather than the minor’s wishes....” (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1265 (Zamer G.).)
In In re Celine R. (2003) 31 Cal.4th 45, our Supreme Court examined whether and under what circumstances separate siblings must have separate counsel. It concluded “that the court may appoint a single attorney to represent all of the siblings unless, at the time of appointment, an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise. After the initial appointment, the court must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises.” (Id. at p. 50; see also Zamer G., supra, 153 Cal.App.4th at p. 1264 [this holding “was codified and expanded upon in California Rules of Court, rule 5.660(c)”].) Any error is subject to the prejudice standard enunciated in People v.Watson (1956) 46 Cal.2d 818, 836, i.e., whether it is reasonably probable the result would have been different absent the error. (Celine R., supra, 31 Cal.4th at p. 60.)
Here, we find no error. Minors’ counsel considered the issues as to the three younger children, even reviewing reports of father’s visitation with them, and formulated her recommendation as to them in light of their interests. Parents argue “it was impossible for minors’ counsel to make an independent assessment of [the younger children’s] best interests” because (1) counsel was probably privy to confidential information from J.M. which made counsel “reluctant to argue the younger children should be sent home, ” and (2) counsel’s duty of loyalty owed to J.M. might have prevented her from calling M.M. or Ka.M. to testify or from crediting their statements over those of J.M. The record does not support either of these assertions. It is speculative and unlikely that J.M. made significant confidential disclosures to counsel, especially in light of J.M.’s extensive and detailed public statements and testimony. As to the second point, parents themselves could have called M.M. or Ka.M. to testify; the fact that parents did not do so suggests such testimony was not critical. In any case, it is not reasonably probable a different outcome would have resulted if minors’ counsel had strongly advocated that the three younger children be returned to parents. The court detailed its reasons for removing J.M.’s siblings from the home and based its reasoning on all the reports and testimony.
Zamer G., supra, 153 Cal.App.4th 1253, on which parents rely, is inapposite. There, the appellate court affirmed “the juvenile court’s order disqualifying [minors’ counsel] from representing four of the siblings because the record contain[ed] substantial evidence of an actual conflict among those four siblings.” (Id. at p. 1257.) In doing so, the appellate court viewed the circumstances in the light most favorable to the lower court’s order. (Id. at p. 1271.) The disqualified attorney had “received confidential information” from two of the siblings. (Id. at p. 1261.) “To advocate in favor of reunification services for [the other two siblings, counsel] would have to dispute the accuracy or reliability of the statements made by” the siblings from whom counsel had received confidential information. (Id. at p. 1272.) The appellate court stated the “juvenile court could reasonably conclude that there was an actual conflict because [counsel] could not professionally and independently evaluate each child’s best interests when faced with this dilemma.” (Ibid.)
Here, the court did not err by failing to appoint independent counsel for the three younger children.
The Court Abused Its Discretion by Issuing a Vague Visitation Plan
Parents assert the visitation order fails to specify a minimum amount of visitation or standards for facilitation of visitation and therefore constitutes an improper delegation of judicial discretion or an illusory visitation order. We exercise our discretion to address this issue even though parents failed to raise an objection to the visitation order below. “‘[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]’ [Citation.] However, ‘application of the forfeiture rule is not automatic.’ [Citation.] An issue may be raised on appeal if ‘“it raises only a question of law and can be decided based on undisputed facts.” [Citations.]’ [Citation.] Where, as here, ‘the facts are not disputed, the effect or legal significance of those facts is a question of law, ’ which ‘is not automatically subject to the doctrine of forfeiture.’” (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313-1314.)
The visitation order (as incorporated from SSA’s October 4 report) clearly leaves the frequency and duration of visits to the discretion of SSA. A visitation order which gives an agency “no guidance as to when, how often, and under what circumstances visitation is to occur” is “an improper delegation of judicial authority.” (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) Such an order in effect allows the agency “to decide whether visitation actually will occur.” (In re Rebecca S., supra, 181 Cal.App.4th at p. 1314.)
SSA asks us to take judicial notice of the court’s February 22, 2011 minute order concerning visitation. We have done so. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) That minute order states, “Parents[’] visits to be a minimum of three (3) times per week monitored.” But it also states, “Court orders all children to be taken to participate in visits, however, children are not forced to visit with parents.” And it further states, “SSA authorized to lift/reinstate as deemed appropriate, ” immediately after the statement, “Court authorizes parents 8 hour visits total per week unless there [is] an unavoidable conflict.”
Based on this minute order, we cannot conclude parents’ challenge to the prior visitation order is moot. It appears the court has determined that visitation of all four children with parents three times a week is warranted and appropriate. Nonetheless, the order appears to delegate to SSA and the children whether such visitation will actually occur. We note that J.M. has not attended visits with father. Furthermore, there is evidence in the record that M.M. may have been motivated to miss a visit(s) because his maternal relatives invited him to go fishing instead.
“Courts have long recognized that, in the context of dependency proceedings, a lack of visitation may ‘virtually assure[] the erosion (and termination) of any meaningful relationship’ between [parent] and child.” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.) “If, as here, the court grants visitation, ‘it must also ensure that at least some visitation at a minimum level determined by the court itself, will in fact occur.’” (Id. at p. 1505.) “In no case may a child be allowed to control whether visitation occurs.” (Ibid.) Children may not be given the power to effectively “veto all visits.” (In re S.H. (2003) 111 Cal.App.4th 310, 319.)
DISPOSITION
The juvenile court’s visitation order is reversed. On remand, the court shall issue a new visitation order specifying the frequency and duration of each parent’s visits, and the children with whom parents are entitled to visitation. In all other respects, the judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.