Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court No. EJ1641C-E of San Diego County, James H. Lauer, Jr., Juvenile Court Referee.
AARON, J.
William C. appeals after the juvenile court confirmed its prior visitation orders as to William's minor children Peter C., Jennifer C. and Melissa C. (collectively, the minors). William contends that the visitation orders improperly give the minors discretion to determine whether visits will occur. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
A more detailed version of the factual and procedural background is recited in our prior opinion involving this family. (In re Peter C. (Sept. 11, 2009, D054365) [nonpub. opn.].)
The minors first became dependents of the juvenile court in 1999 based on findings of domestic violence between William and the minors' mother, Tammy H. By May 2001, Tammy reunified with the minors and the court terminated its dependency jurisdiction.
In April 2008, the minors (then 11, 10 and 8 years old) again became dependents and were removed from parental custody after the court found that William had physically abused them, and that his excessive drinking rendered him unable to provide them with adequate care. (Welf. & Inst. Code, § 300, subds. (a) & (b).) The court placed the minors in foster care, ordered William to participate in reunification services, and ordered supervised visits with the minors.
William refused to participate in reunification services. The minors were afraid of William, having seen him abuse alcohol and lose his temper, and having experienced physical abuse that caused marks or bruises. Peter and Melissa were having supervised visits with William, but Jennifer refused visits because she was fearful of what William might do to her.
The minors were highly traumatized and were experiencing severe emotional problems as a result of having been abused by William. Their fear of William manifested itself in extreme behaviors. William continued to threaten and intimidate the social worker, staff at the minors' group homes, and other service providers involved in the case.
By October 2008, William was having weekly unsupervised visits with Peter and weekly supervised visits with Melissa. However, Jennifer continued to refuse to see him. Peter asked that his visits with William be supervised because Peter was uncomfortable with William and was afraid of him. During one supervised visit with William, Melissa looked frightened and asked that the visit not last more than five minutes. Before another visit with William, Melissa appeared to be in distress.
The social worker believed that William would benefit from services, which would help him improve his relationship with the minors. However, William was unwilling to participate in any part of his case plan, and refused to acknowledge that his threatening and intimidating behavior may have contributed to the minors' reluctance to see him.
At a special hearing on November 13, 2008, William asked the court to reaffirm its order for visitation with the minors. Minors' counsel informed the court that Jennifer consistently requested no contact with William, and that Peter and Melissa were inconsistent as to whether they wanted contact with him. The court ordered supervised visitation for William with all three minors, but noted that the minors were not to be forced to participate in any particular visit with him. The court further ordered the minors to address their relationship with William in therapy, with the goal of facilitating visits. William appealed, and in an unpublished opinion, this court affirmed the visitation orders. (In re Peter C., supra, (D054365).)
According to a status review report dated December 15, 2008, the minors' weekend overnight visits with Tammy were going well. Peter was having weekly supervised visits with William. Melissa was having occasional visits with William, and Jennifer refused to see him. William continued to refuse to participate in services, stating that once the minors were returned to Tammy's custody, he would go to family court to regain custody of them. The minors still feared William, and were conflicted about their relationship with him. Tammy had worked diligently on her case plan, and the social worker anticipated that the minors would be returned to her by the 12-month review hearing.
On January 30, 2009, Jennifer and Melissa began a 60-day trial visit with Tammy. Peter needed additional time in a structured environment and more therapy before he could be returned home.
At a pretrial status conference on February 9, 2009, William appeared in propria persona. Tammy withdrew her request for a trial. The court explained to William that he had a right to a contested hearing. William said that he was "not going to contest anything," and that he was waiving his right to a hearing. The court continued the minors as dependents, placed Jennifer and Melissa with Tammy, and continued Peter's placement in out-of-home care. The court found that it was likely that Peter would be returned to Tammy's custody by the next review hearing. When the court inquired about whether visitation was to be supervised, William responded, "I have none. It's basically if the children want to, they can. So they are with their mother, so the mother is going to say no, they didn't want to. So I have none. It is a false visitation." The court confirmed its order for visitation, and directed the social worker to ensure that William had the visitation to which he was entitled.
DISCUSSION
William contends that the juvenile court erred by giving the minors discretion to decide whether a visit with him would occur. William recognizes that he raised this issue in his prior appeal, but continues to assert that the court's erroneous visitation order has resulted in a de facto "no contact" order.
A
In its respondent's brief, the San Diego County Health and Human Services Agency (Agency) argues that the doctrine of forfeiture bars William's claim of error because William told the court that he was "not going to contest anything." Ordinarily, the failure to assert a right in a timely manner results in forfeiture of the ability to claim error as grounds for reversal on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) However, William did object to the court's visitation order on the ground that the minors were continuing to refuse visits with him. He has thus sufficiently preserved the issue for appeal.
B
The issue that William raises is identical to the one he raised in his earlier appeal: whether the court impermissibly gave the minors the power to refuse all visits with him. In addressing William's argument in the prior appeal, this court concluded that the visitation order "does not vest the minors with absolute discretion to determine whether visitation should occur. Rather, the court ordered supervised visits between William and the minors, and balanced William's right to visitation with the minors' emotional well-being by allowing the minors to refuse a particular visit while at the same time requiring them to address the parent-child relationship in therapy." (In re Peter C., supra, (D054365) at p. 9.) This court reasoned that the minors' fear of William was justified in light of the physical abuse the minors had suffered, and that the juvenile court reasonably found that forced contact with William could emotionally harm these highly traumatized children. (Id. at p. 10.) Further, in denying the abuse and refusing to participate in reunification services, William did nothing to alleviate the protective issues, and in fact, contributed to the minors' ongoing fear of him. (Ibid.) Thus, "the court was acting in the minors' best interests by making their input on visits a dominant factor in implementing the visitation order." (Id. at p. 11.)
The juvenile court has not abdicated its authority to determine whether any visitation would occur. The orders that William now challenges confirm his right to visitation and direct the social worker to ensure that he has the visitation to which he is entitled. The record before us shows that Peter has been visiting with William once a week, and that Melissa has been visiting him occasionally. Jennifer remains unwilling to visit William, but is addressing her feelings about him in therapy, as ordered by the juvenile court. The minors still fear William and are conflicted about their relationship with him. Significantly, William has continued to refuse to participate in services, thus perpetuating the estrangement of the minors.
We conclude that the court's visitation orders do not impermissibly give the minors de facto veto power to ensure that no visitation will occur. Instead, the ultimate supervision and control for visitation remains with the court. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237.)
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.