Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge, Super. Ct. No. NJ13508
McDONALD, Acting P. J.
The juvenile court made custody and visitation orders, modified a restraining order, and terminated dependency jurisdiction in the case of Kailey M. Kailey's presumed father, Randall C., appeals, challenging the visitation and restraining orders. We conclude it is unclear whether Randall's visitation with Kailey is supervised or unsupervised, the restraining order contains inconsistencies, and there are discrepancies between the visitation order and the restraining order. We remand the case to the family court to resolve these issues and otherwise affirm the juvenile court orders.
BACKGROUND
In May 2006 Kailey was eight months old and the Riverside County Department of Public Social Services (DPSS) filed a dependency petition alleging Randall and Kailey's mother, Jamie M., abused drugs and engaged in acts of violence in Kailey's presence. Kailey was detained in foster care.
The petition was later amended to delete allegations that Jamie was under the influence of controlled substances while caring for Kailey, Randall had an extensive criminal history, and both parents were incarcerated.
In July 2006 the Riverside County juvenile court entered true findings on the petition, declared Kailey a dependent, ordered her placed with Jamie, and issued a temporary restraining order. The court allowed Randall visits supervised by the DPSS or an adult approved by the DPSS. The temporary restraining order prohibited him from contacting Jamie and Kailey "except for brief and peaceful contact as required for court-ordered visitation" and required him to stay at least 100 yards from Kailey's school or place of child care. In August the court extended the restraining order for three years. The court authorized supervised overnight, weekend, and day visits for Randall.
In September 2006 the case was transferred to San Diego County, where Jamie was living. In October the San Diego County Juvenile Court gave the San Diego County Health and Human Services Agency (the Agency) discretion to lift the visitation supervision requirement. In December the court modified the restraining order by allowing the Agency discretion to permit unsupervised visits by Randall with the concurrence of Kailey's counsel.
By January 2007 Randall was visiting Kailey for eight hours on Saturdays, supervised by the paternal grandmother. On February 6 the court ordered the next Saturday visit to be overnight in the home of and supervised by the paternal grandmother. The first overnight visit took place on February 10. On February 13 the court authorized visits for Randall every other weekend, from 9:00 a.m. Friday to 4:00 p.m. Sunday, and ordered the social worker to facilitate Kailey's transfer between Jamie and Randall. The court noted Jamie and Randall were scheduled to participate in mediation on March 19 and ordered them to set a special hearing after they completed mediation.
On March 19, 2007, Jamie and Randall participated in mediation with a Family Court Services counselor. Jamie and Randall agreed Kailey would be with Randall alternate weekends from 9:00 a.m. Friday to 4:00 p.m. Sunday and the alternate Sunday from 9:00 a.m. to 5:00 p.m. Randall changed his mind, however, and refused to sign the agreement. The counselor then recommended Kailey be with Randall Thursdays from 9:00 a.m. to 1:00 p.m. and from 4:00 p.m. Saturday to 4:00 p.m. Sunday, with the visits supervised by the paternal grandmother.
The counselor recommended the Thursday visits be from 4:00 p.m. to 7:00 p.m. if required for Jamie's CalWorks daycare.
Following the mediation, Randall visited Kailey every other weekend from Friday to Sunday. Neither Jamie nor Randall requested a special hearing. Accordingly, the next hearing was the previously scheduled August 6, 2007, family maintenance review hearing. At that hearing, Jamie's counsel announced Jamie and Randall agreed he would have visits every other weekend, from 5:00 p.m. Thursday to 4:00 p.m. Sunday, and the alternate Sunday from 9:00 a.m. to 5:00 p.m. Randall's and Kailey's attorneys concurred. The court entered an order for visitation conforming to this agreement. The court did not specify whether visits would be supervised or unsupervised. On the form visitation order, under the heading "Father's visitation rights," the boxes marked "As set forth on form JV-205" and "Supervised as set forth on form JV-205" are not checked.
Jamie's counsel also requested the restraining order be modified by deleting Kailey's name as a protected person. The court did so. Randall's counsel requested the restraining order be modified to allow unsupervised visitation and peaceful communication regarding Kailey's welfare. The court pointed out the restraining order already allowed such communication, but did not address the request for unsupervised visits. Attached to the restraining order as form JV-205 is a copy of the Riverside County Juvenile Court's July 2006 visitation order, stating visits are to be supervised by the DPSS or an adult approved by the DPSS.
The court ordered that Jamie and Randall have joint legal custody of Kailey, awarded Jamie physical custody, directed the custody and visitation orders be placed in the family court file, and terminated jurisdiction.
DISCUSSION
The Visitation Order
Randall contends the visitation order is unsupported by substantial evidence and is therefore an abuse of discretion and not in Kailey's best interests. He argues her best interests require that she spend at least half her time with him, or at least more time than the order allows. He asserts the court did not consider his progress in reunification services or the Family Court Services counselor's recommendation for frequent contact.
Randall also contends the visitation order impairs his constitutional right to parent Kailey because it limits his visits to approximately eight days per month. We need not consider this contention, raised for the first time in the reply brief. (In re Tiffany Y. (1990) 223 Cal.App.3d 298, 301.) Moreover, we reject the notion that a visitation order is unconstitutional simply because it allows fewer days of visitation than a parent wishes.
We review the juvenile court's visitation order for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1091, 1095-1096.) The court read and considered the Agency's report, which set forth Randall's progress in reunification services and recommended jurisdiction be terminated and custody be restored to both parents. The court also read and considered the report of the Family Court Services counselor. At the August 2007 hearing, counsel for Randall, Jamie, and Kailey produced a settlement agreement regarding visitation. The court's visitation order conformed to this agreement. (In re Alexandria M., supra, 156 Cal.App.4th at pp. 1095-1096.) The order allowed Randall more extensive and frequent visits than he enjoyed previously and more extensive visitation than the Family Court Services counselor recommended. Although the order did not allow visitation as frequent as the counselor recommended, we cannot say this was "an arbitrary, capricious, or patently absurd determination" exceeding the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
The report noted Kailey was placed with Jamie and had "bi-weekly visits with [Randall] on the weekends." It stated Kailey appeared comfortable with both Jamie and Randall and did not recommend how much time she should spend with each parent.
However, the visitation order is unclear. Before the August 6, 2007 hearing, visits were required to be supervised, although the Agency had discretion to allow unsupervised visits with the concurrence of Kailey's counsel. At the hearing, the court did not say whether visits would be supervised or unsupervised. It is unclear from the form visitation order whether visits are supervised or unsupervised. The restraining order refers to the visitation provisions in the attached form JV-205. Form JV-205 requires supervision. We remand the case to the family court for a determination whether visitation is to be supervised or unsupervised.
The Restraining Order
Randall contends the restraining order is unsupported by substantial evidence. In an apparent attempt to avoid an assertion his appeal is untimely, he argues the juvenile court reissued the restraining order at the August 2007 hearing. However, the court merely modified the order and did not extend its termination date. Thus, insofar as Randall challenges the need for the restraining order—a challenge he could have brought when the court issued the order in 2006—his contention is untimely.
Randall also contends the restraining order violates his right to procedural and substantive due process because it restricts his movements and actions and will affect him negatively in collateral proceedings. This challenge is also untimely.
Citing inapposite authority (Welf. & Inst. Code, § 213.5, subd. (e)(2) [exclusion from a residence or dwelling]), Randall argues the court abused its discretion by excluding him from Kailey's school and place of child care. He correctly contends, however, this portion of the restraining order seems internally inconsistent because Kailey is no longer a protected party. He is also correct in contending this provision conflicts with the visitation order. Some of Randall's visits begin at a time when Kailey may be in child care or at school where he would presumably meet her. Furthermore, the restraining order requires visits be supervised by the Agency or an Agency approved adult. As Randall points out, Agency involvement is no longer possible because dependency jurisdiction has been terminated. We accordingly remand the case to the family court for a resolution of these matters.
The Agency concedes the juvenile court should have stricken this provision.
DISPOSITION
The custody order, the order setting forth the visitation schedule, the restraining order as modified to exclude Kailey as a protected person, and the order terminating dependency jurisdiction are affirmed. The case is remanded to the family court to resolve the unclear matters set forth in this opinion.
WE CONCUR: O'ROURKE, J., AARON, J.