Opinion
NOT TO BE PUBLISHED
Appeal from postjudgment orders of the Superior Court of Orange County Nos. DP020219, DP020220, DP020221, DP020222 Cheryl Leininger, Judge.
Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Senior Deputy County Counsel, and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
In November 2010, the juvenile court declared the four children of parents L.M. (father) and A.M. (mother) to be dependents of the court. In February 2011, at a 90-day progress review hearing, the court issued orders and denied father’s petition for modification under Welfare and Institutions Code section 388 and his other motions. Two days later, the court modified its visitation order. Father appeals from the court’s February 2011 orders: (1) requiring him to submit to continued substance abuse testing; (2) declining to appoint separate counsel for the three younger children; and (3) stating that the children are not forced to visit with parents. As to this last contention, we agree the visitation orders must be reversed. In all other respects, we affirm the court’s orders.
All statutory references are to the Welfare and Institutions Code.
FACTS
Parents’ sons, J.M. and M.M., are now 16 and 13 years old, respectively. Their daughters, Ka.M. and Kr.M., are seven and three years old, respectively.
In August 2010, the juvenile court removed the children from parents’ home and placed them with their maternal grandmother. Orange County Social Services Agency (SSA) alleged the children were at risk of suffering serious physical harm due to: (1) an incident in which father grabbed J.M. by the throat, “slammed” him onto father’s bed, and held him there for at most 10 seconds while yelling at him; (2) father’s ongoing physical and verbal abuse of J.M.; (3) father’s alcohol problem; (4) mother’s brain tumor and depression; and (5) parents’ reciprocal domestic violence.
SSA’s factual jurisdictional allegations were: (1) around August 23, 2010, 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; (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; (3) 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”; (4) 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; (5) father has an unresolved alcohol problem which impairs his ability to effectively care for, parent, and protect the children; (6) mother had undergone surgery to remove a brain tumor in June 2010, the tumor was growing back, mother suffered ongoing seizures, and her medical condition impaired her ability to parent and provide for the children; (7) on August 24, 2010, 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 (8) father has a long history of substance abuse, including alcohol.
In November 2010, the court found true the jurisdictional allegations of SSA’s petition, as amended, and declared the children to be dependents of the court. The court ordered reunification services for both parents. For father, these services included a 52-week batterer’s treatment program, drug and alcohol counseling, and anger management counseling. For mother, the services included counseling for domestic violence as an aggressor and victim. The court approved the visitation plan in SSA’s October 4, 2010 report, which recommended supervised visitation for both parents beginning on September 29, 2010, with SSA “authorized to liberalize visits as to frequency, duration and need for monitoring.” The recommended visitation plan and corresponding court order contained no further details.
Parents appealed from the judgment. In May 2011, we issued our unpublished opinion (the prior opinion), affirming the juvenile court’s (1) jurisdictional findings and removal order, and (2) decision that minors’ counsel had no conflict of interest preventing her from fairly and effectively representing all four children. (In re J.M. (May 23, 2011, G044497) [nonpub.opn.].) But we reversed the court’s visitation order because it improperly delegated judicial discretion to SSA and the children. We remanded the case to the juvenile court for a new visitation order.
The record in the current appeal contains the following new and pertinent information. In February 2011, SSA reported that the children felt comfortable in their maternal grandparents’ home. The relationship between J.M. and M.M., which had previously been contentious, had improved.
The record in the prior appeal extended only through the November 2010 combined jurisdictional and dispositional hearing. In addition, we took judicial notice of the court’s February 22, 2011 minuteorder concerning visitation to determine whether the appeal of the visitation order was moot.
Parents complained that the maternal grandparents and other relatives were brainwashing the children by talking negatively about parents. Although the children denied this, M.M. said the maternal aunt and uncle did not get along with father because father was “beating” mother and other “stuff.”
Parents agreed to participate in their case plan services, but denied any history of physical abuse of J.M., domestic violence, or alcohol abuse by father. Although mother completed a parenting program, she had not enrolled in a Personal Empowerment Program and did not recall the name of the agency or therapist for her domestic violence counseling. Mother claimed she had provided SSA with a letter discharging her from psychiatric treatment, but SSA’s file contained no such letter.
Father was attending anger management and parenting classes and a 52-week batterer’s treatment program. A progress report for the batterer’s treatment program indicated father was doing very well, was an active participant, and was making a good effort. But he was in “‘total denial’” concerning “‘child abuse and domestic violence, ’” claiming “he never hit his wife and children.” Father told a receptionist at mother’s parenting class to “‘look at me when I am talking to you.’” Father had tested for substance abuse 27 times with no positive or missed tests.
Parents received three visits a week. But J.M. and M.M. were resistant to visits, despite continuing encouragement from the maternal grandparents and the social worker. J.M. stated he only wanted to visit with mother. Ka.M. and Kr.M., on the other hand, looked forward to visits with parents. The visits were positive, and parents engaged in age-appropriate play with the girls. Once, Kr.M. pretended to phone parents and said, “Hello, I love you.”
A visitation monitor reported that, after one visit, mother argued with the maternal grandmother about a missing ring, and father moved his car behind the grandmother to prevent her from leaving. Another time, mother came to a visit but stayed in the car; father went to the car to ask her to participate but she refused and father slammed the car door.
The children and parents asked “for visits to occur at church, Magic Mountain, Monster Jam[, ] and other similar activities, ” as well as overnight and unmonitored visits. But the social worker asked parents and the children “to focus on visits more engaged for personal interactions and sharing than on fun activities.” The social worker had, however, (1) increased visitation to eight hours per week, (2) arranged for weekend visits, and (3) added an extra visit when father’s brother and sister-in-law visited.
In SSA’s February 2011 report, the social worker recommended that the court’s existing orders remain in effect.
On February 22, 2011, the date of the interim review hearing, father filed a section 388 petition. In support of his petition, he declared, inter alia, that his circumstances had been “in disarray” in 2010, due to mother’s brain tumor, father’s unemployment, and the paternal grandmother’s death. At that time, the family home was at risk of foreclosure, the cars at risk of being repossessed, the paternal grandmother had left behind debts, father “drank socially, ” and he and mother did not belong to a church. Now these circumstances had changed: Father was working fulltime as a construction foreman, was active in his church, and did “not drink at all.” Mother was fully recovered and no longer depressed. Their financial condition had stabilized; for example, they had refinanced their home and paid off a car loan. Father claimed he had learned how to discipline his children, deal with his triggers for anger, and reach consensus with mother on techniques for child rearing.
At the February 22, 2011 interim review hearing, father moved for visitation with all four children, disqualification of minors’ counsel as to the three youngest children, and termination of his alcohol testing requirements. Father’s motions concerning alcohol testing and independent minors’ counsel were not requested in his section 388 petition. Only his visitation request was made in the section 388 petition.
The court ruled on father’s section 388 petition and his other motions simultaneously. It denied father’s requests concerning alcohol testing, minors’ counsel, and visitation. The court continued the case to the six-month review hearing.
The court denied father’s section 388 petition, concluding that father’s only changed circumstance was his employment, and that he had shown only changing, not changed circumstances.
DISCUSSION
The Court Did Not Abuse Its Discretion by Requiring Father to Continue Substance Abuse Testing
At the interim review hearing, father asked to be relieved from any further substance abuse testing or, alternatively, that he be “tested only upon reasonable suspicion.” He noted that he had not missed a test and had tested clean at least 27 times in the last five and a half months, and that he no longer drinks even socially. The court denied father’s request, because only “a relatively short period of time” had passed. The court indicated it would reconsider father’s request at the “next hearing.”
“At the dispositional hearing, the juvenile court must order child welfare services for the minor and the minor’s parents to facilitate reunification of the family.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006; § 361.5, subd. (a).) The court’s orders to the parents must be “reasonable, ” “necessary[, ] and proper”; the program must “be designed to eliminate those conditions that led to the court’s” taking jurisdiction over the children. (§ 362, subd. (c).)
Father argues we must apply an abuse of discretion or a substantial evidence standard of review to the court’s denial of his motion. (See, e.g., In re Christopher H., supra, 50 Cal.App.4th at p. 1006; In re Jasmin C. (2003) 106 Cal.App.4th 177, 180.) SSA, on the other hand, argues father’s motion sought to modify the court’s prior order and therefore father was required under section 388 to make a prima facie showing of changed circumstances and the children’s best interests. Under any of the foregoing standards, we affirm the court’s denial of father’s motion on substance abuse testing. In the prior opinion, we concluded that substantial evidence supports the court’s jurisdictional finding that father has a long history of substance abuse, including alcohol. Accordingly, the court did not abuse its discretion by concluding that father’s alcohol abuse was a problem to be addressed in the reunification plan, and that five and a half months of testing was too short a time period to ensure the problem had been resolved. This is particularly true since there is no evidence father has begun a drug treatment program as required by his case plan.
The Court Did Not Err by Declining to Appoint Separate Counsel for the Three Younger Children
At the interim review hearing, father asked that M.M., Ka.M., and Kr.M. be appointed minors’ counsel separate from J.M.’s, because J.M.’s “situation is far different” from the other children’s and therefore current minors’ counsel “has a clear conflict.” Minors’ counsel argued: “[I]n terms of my having a conflict..., during my closing argument [at the trial] I did assess the children differently. So I don’t believe that I have a conflict at all. I am perfectly capable of assessing their needs differently and I believe that I did so in the trial.”
The court ruled that minors’ counsel had no conflict, stating: “It’s certainly not uncommon for the minors’ attorneys to have different viewpoints of different children within the family.... I don’t have any indication to believe that there is any kind of a conflict that exists with regards to [minors’ counsel] representing all children at this time, even though [J.M.] is in a bit of a different situation.”
In the prior opinion, we held the court did not err by failing to appoint independent counsel for the three younger children. The record in the current appeal contains no new information pertinent to this issue. Father has failed to show minors’ counsel has an actual conflict of interest preventing her from representing all four children.
The Court’s Visitation Orders Improperly Delegate Judicial Authority to the Children
Father asserts the court’s February 2011 visitation orders improperly delegate judicial discretion to the children to decide whether visitation will occur.
At the February 22, 2011 interim review hearing, father’s counsel asked that all four children be brought to visits, arguing: “It’s not the children’s choice. The law is clear on that.” Father’s counsel noted that, although J.M. had recently visited twice, “two times in seven months is insufficient for family reunification.” The court ordered that all children be taken to the visits, but stated: “[T]hey don’t have to be forced to visit.” The court authorized eight hours per week visitation and an extra visit for M.M.’s birthday, but denied unmonitored, all-day, or overnight visits as premature. The February 22, 2011 minute order (of which we took judicial notice in the prior appeal) states: “Court orders all children to be taken to participate in visits, however, children are not forced to visit with parents.”
Two days later, on February 24, 2011, the court clarified its visitation order: “The court had indicated that all the children were to be transported to the visits but I also indicated that [J.M.] did not have to visit if he did not want to visit. So I wanted to clarify that. I do not believe that it is appropriate if [J.M.] is refusing to visit that he be forced to be taken to the visits and just ultimately sit in a car or someplace away from the others. So I do not believe he should be forced to go if he doesn’t want to go. But I do want the social worker to encourage him to go to the visits.” The court further stated SSA should use best efforts to arrange visitation between J.M. and mother, if that was still J.M.’s request.
In the prior opinion, we remanded the case to the juvenile court because its visitation order improperly delegated to SSA and the children the decision whether visits would actually take place. At that time, the record did not contain (nor did the parties ask us to take judicial notice of) the juvenile court’s February 24, 2011 order. As we shall explain in more detail below, the February 24, 2011 order does not change our conclusion that the court’s visitation orders must be reversed. We will therefore remand the case to the juvenile court for a more specific visitation order.
For the court’s guidance on remand, we review the relevant law on parental visitation during the reunification period. Parents receiving reunification services have a statutory right to visit their child unless such visitation jeopardizes the child’s safety. (§ 362.1, subd. (a)(1).) Visitation serves “to maintain ties between the parent... and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent....” (Ibid.) Accordingly, visitation should “be as frequent as possible, consistent with the well-being of the child.” (Ibid.)
“There is a split of authority as to whether detriment to the child [sufficient to justify denial of parental visitation] means to the child’s overall well-being, including both physical and emotional detriment, or whether it only means detriment to the physical safety of the child.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2011 ed.) § 2.129[5][b][i], pp. 2-379 – 2-380.) A leading treatise suggests the correct standard is whether visitation would be detrimental to “the child’s physical or emotional safety.” (Id. at § 2.129[5][b][ii], p. 2-380, italics added.) Courts have also split on whether the standard of proof for such detriment is by clear and convincing evidence or by a preponderance of the evidence. (Id. at § 2.129[5][b][iii], pp. 2-380 – 2-381.)
Here, given that J.M. has visited with parents at least twice, the court has apparently decided that parents are entitled to visitation with all four children, but that J.M. (and possibly also M.M. or perhaps all four children) cannot be forced to visit with mother and/or father. Case law uniformly forbids a court’s complete and total delegation of judicial discretion: “The court must decide whether visitation is to occur and provide the department with guidelines on any prerequisites to or limitations on visitation; the visitation order may not give the department or the child total discretion to decide whether visitation occurs. [Citation.] The court may delegate some decisions over the time, place, and manner of visits, but it cannot delegate the visitation decision itself. [Citations.]” (2 Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2d ed. 2002) § 5.75, pp. 262-263.)
This issue was thoroughly discussed in three cases cited by the parties. The earliest case, In re Danielle W. (1989) 207 Cal.App.3d 1227 (Danielle W.), involved the following visitation order: “‘Visitation will be at [the agency’s] discretion and the children’s discretion. [¶] I am not going to force them to visit when they don’t want to. But whenever they want to, it can be at a location selected by the’” agency. (Id. at p. 1233.) The appellate court held the order did not improperly delegate judicial powers, explaining: “First, there is no delegation of judicial power to the children even though the order states in part that visitation is at the discretion of the minors. In the context of this case, this means the children should not be forced to visit with their mother against their will and in no way suggests that the minors are authorized to do more than express their desires in this regard. Second, the order simply authorizes the Department to administer the details of visitation, as specified by the court. Although the order grants the Department some discretion to determine whether a specific proposed visit would be in the best interests of the child, the dominant factor in the exercise of that discretion is the desire of the child to visit the mother.” (Id. at p. 1237.) The court “point[ed] out, however, that a visitation order granting the Department complete and total discretion to determine whether or not visitation occurs would be invalid.” (Ibid.) “The juvenile court must first determine whether or not visitation should occur, as was done here, and then provide the Department with guidelines as to the prerequisites of visitation or any limitations or required circumstances.” (Ibid.)
In In re Julie M. (1999) 69 Cal.App.4th 41 (Julie M.), this court held that a visitation order unlawfully delegated judicial authority to the children. (Id. at p. 43.) The order gave the children “the option to consent to, or refuse, any future visits with” the parent. (Id. at p. 46.) Thus, the order gave “the children absolute discretion to decide whether [the parent] could visit with them” and “essentially delegated judicial power to the children — an abdication of governmental responsibility which was disapproved even in [Danielle W.].” (Id. at pp. 48-49.) In distinguishing Danielle W., this court explained: “Danielle W. approved a visitation order which vested limited discretion in the county welfare agency to consider the children’s desires regarding visits with their mother. The court found that an order vesting discretion in the agency and the children meant ‘[i]n the context of this case... the children should not be forced to visit with their mother against their will and in no way suggests that the minors are authorized to do more than express their desires in this regard.’ [Citation.] Danielle W. recognized that a child’s aversion to visiting an abusive parent may be a ‘dominant’ factor in administering visitation, but it could not be the sole factor.” (Julie M. at pp. 50-51.)
Finally, in In re S.H. (2003) 111 Cal.App.4th 310, the Court of Appeal reversed a visitation order similar to the one in Danielle W., “holding that, when the court orders visitation, it must also ensure that at least some visitation, at a minimum level determined by the court itself, will in fact occur.” (In re S.H. at p. 313, 318, fn. 12.) “[B]y failing to mandate any minimum number of monitored visits [within a specified time period], the court’s abstract recognition of [the mother’s] right to visitation is illusory, transforming the children’s ability to refuse ‘a visit’ into the practical ability to forestall any visits at all.” (Id. at p. 319.) “[W]hile the juvenile court may allow the child to refuse to attend a particular visit, to prevent the child from exercising a de facto veto power, there must be some assurance that, should that occur, another visit will be scheduled and actually take place.” (Ibid.) “In no event, however, may the child’s wishes be the sole factor in determining whether any visitation takes place, either as a formal matter or, as occurred in the case now before us, by effectively giving the children the power to veto all visits.” (Ibid.)
We agree with In re S.H., supra, 111 Cal.App.4th 310, 319, that when a court authorizes a parent to visit with a child, the court cannot then accord the child the discretion to refuse all visitation. An order which effectively grants a child the power to veto all visits is tantamount to a denial of visitation. Such a denial must be based on the court’s finding that parental visitation would jeopardize the child’s safety. (§ 361.2, subd. (a)(1)(B).)
That an adolescent may find visits to be boring is obviously irrelevant to his or her safety. In October 2010, M.M. stated he had “not gone to the last few visits with the father because ‘I get bored at the visits, there are nothing but little kids toys there.’” Father expressed concern that his children were growing “more distant, ” and that M.M. missed visits because the maternal aunt and uncle planned fishing trips on scheduled visitation days.
A trial court has broad discretion to fashion a visitation order which recognizes the justifiable reluctance of a child like J.M. to visit an abusive parent, yet still guarantees the parent some minimum visitation. A court can build flexibility into its order by granting SSA and the child limited discretion in determining when visitation shall occur. For example, a court’s order can “provide SSA with ‘broad “guidelines as to the prerequisites of visitation or any limitations or required circumstances.”’ [Citation.] Such an order may assign the task of overseeing visitation to the SSA to ‘promptly respond to changing dynamics of the relationship between parent... and child, which changes may dictate immediate increases or decreases in visitation or demand variations in the time, place and length of particular visits.’” (Julie M., supra, 69 Cal.App.4th at p. 51.)
DISPOSITION
The juvenile court’s February 22 and 24, 2011 visitation orders are reversed. On remand, the court shall conduct a hearing on visitation and issue a new order in accordance with the views expressed in this opinion.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.