Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. EJ1641C-E Carol Isackson, Judge.
AARON, J.
This is the fourth appeal filed by William C., father of dependent minors Peter C., Jennifer C. and Melissa C. (collectively, the minors) in which he challenges the juvenile court's visitation orders. As in his prior appeals, William again contends that the court erred by giving the minors discretion to determine whether they will have visits with him. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts and Procedure from Our Prior Opinions
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, holding that the minors were not given the power to veto all visits; instead, the ultimate supervision and control for visitation properly remained with the court. (In re Peter C. (Sept. 11, 2009, D054365) [nonpub. opn.].)
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, 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. The court confirmed its order for visitation, and directed the social worker to ensure that William had the visitation to which he was entitled. William appealed, and in an unpublished opinion, this court held that the visitation orders do not impermissibly give the minors de facto veto power to ensure that no visitation will occur. (In re Peter C. (Oct. 9, 2009, D054906) [nonpub. opn.].)
2. Facts and Procedure Relating to Present Appeal
On March 20, 2009, Peter was returned to Tammy's custody. All three minors told the social worker that they felt safe and that Tammy was treating them well.
On April 1, 2009, William requested a special hearing, claiming, among other things, that he had not had any visits with the minors since October 2008. At a hearing on April 22, 2009, minors' counsel informed the court that Peter and Melissa now wanted to have supervised visits and telephone calls with William. Melissa addressed the court, asking if she could have a visit with William that day. Jennifer told the court she also wanted to have visits with William, but not right now. She said that she wanted to have telephone contact with him.
The court ordered that visits with Peter and Melissa, and telephone calls with Jennifer, were "to begin immediately," and were to occur "on a regular basis," as long as there were no problems. The court ordered Agency to arrange those visits and to evaluate William's friend (the director of his sober living facility) to supervise the visits. Visits were to occur in a structured setting, but Agency had discretion to move them to a less structured setting. The court also gave Agency discretion to allow unsupervised visits in the future, with the concurrence of minors' counsel. The court noted that the entire family, except William, was participating in services, and encouraged William to do so "in order for this family to heal." William responded, "I am still insisting I have not done anything wrong."
The social worker was unwilling to supervise visits because William had previously threatened to kill him.
DISCUSSION
William contends that the juvenile court erred by giving the minors discretion to decide whether a visit with him would take place. William recognizes that he has raised this same issue in his prior appeals, but continues to assert it because he claims that the court's erroneous visitation order has resulted in a de facto "no contact" order.
A
As we previously held, the juvenile court throughout these proceedings has not given the minors absolute discretion to determine whether any visitation should occur, and thus, has not abdicated its authority in this regard. (In re Peter C. (Mar. 9, 2009, D053567 [nonpub. opn.]; In re Peter C. (Sept. 11, 2009, D054365) [nonpub. opn.]; In re Peter C. (Oct. 9, 2009, D054906) [nonpub. opn.].) Instead, the court has repeatedly "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; In re Peter C., supra, (D054906) at p. 6.) We previously concluded that "the court's visitation orders do not impermissibly give the minors de facto veto power to ensure that no visitation will occur." (In re Peter C., supra, (D054365) at pp. 11-12; In re Peter C., supra, (D054906) at p. 7.)
As part of the analysis in our prior opinions, we recognized that William had been physically violent toward Tammy and the minors, and that he threatened and intimidated the professionals in this case. As a consequence, the minors remained fearful of William, as manifested by their serious emotional problems. We also noted that William has continued to deny having abused the minors, despite substantial evidence to the contrary, and has continued to refuse to participate in services, thus perpetuating the estrangement of the minors. (In re Peter C., supra, (D054365) at p. 10; In re Peter C., supra, (D054906) at p. 6.) William's visits with the minors are limited as a result of fear that he instilled in the minors. The court, through its orders, has attempted to create a mechanism by which to protect the minors' well-being "by making their input on visits a dominant factor in implementing the visitation order." (In re Peter C., supra, (D054365) at p. 11; In re Peter C., supra, (D054906) at p. 6.) In so doing, the court has not abused its discretion.
B
William again cites In re S.H. (2003) 111 Cal.App.4th 310, 318-319 to support the argument that, due to the court's actions, his right to visitation is illusory. In S.H., the minors became dependents based on allegations of physical and sexual abuse by their stepfather, and their mother's failure to protect them. (Id. at p. 313.) The juvenile court ordered visits between the mother and children, but stated "'if the children refuse a visit, then they shall not be forced to have a visit.'" (Id. at p. 316.) The mother argued, and the reviewing court agreed, that this order impermissibly gave the children de facto power to ensure that no visitation will occur absent the children's consent. (Id. at pp. 318, 319.) The court reasoned that "by failing to mandate any minimum number of monitored visits per month or even to order that some visitation must occur each month, the court's abstract recognition of [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.) Nevertheless, citing In re Julie M. (1999) 69 Cal.App.4th 41, 50, the S.H court recognized that a child's aversion to visiting an abusive parent is a proper factor for a court to consider in administering visitation, as long as it is not the sole factor in determining whether any visitation occurs—either as a formal matter or by effectively giving the child the power to veto all visits. (In re S.H., supra, at pp. 319-320.) The S.H. court also acknowledged that the juvenile court need not specify the frequency or length of visits, or even set a minimum number of visits per month. (Id. at p. 319.)
Here, the court made it clear that ultimate supervision and control of visitation remained with the court. On several occasions, the court confirmed its orders for supervised visits between William and the minors, and directed the social worker to ensure that William had the visitation to which he was entitled. Indeed, Peter and Melissa were occasionally having visits with William. The court did not intend to allow the minors to forestall visits. Instead, it recognized that given William's abusive and threatening relationship with the minors and his unwillingness to take responsibility for the minors' legitimate fear of him, the minors' well-being required that they be afforded the opportunity to have input regarding their participation in any given visit. The minors' reluctance to visit William, although a dominant factor, was not the sole factor in the court's decision. (See In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237 [visitation order that provided children should not be forced to visit mother against their will was not improper delegation of judicial power].)
In re S.H. is further distinguishable because in that case, there was no indication that the minors were suffering from serious emotional problems caused by fear of their mother, or that the mother refused to participate in services, thereby further alienating the minors. William's refusal to participate in services as a way of healing his relationship with the minors has played a major role in the minors' reluctance to visit him. We reiterate that William's desire for visitation cannot be indulged at the minors' expense. This is not a case where William has done everything that was required of him and still had no visits. (See In reChantal S. (1996) 13 Cal.4th 196, 213-214 [court properly conditioned father's visitation on making sufficient progress in therapy].)
C
The visitation order that William challenges provides for supervised visits with Peter and Melissa, and for telephone calls with Jennifer, "to begin immediately" and to occur "on a regular basis," barring any problems. Melissa told the court that she wanted a visit with William that day, and Jennifer expressed her willingness to communicate with William by telephone. The court ordered Agency to arrange those visits and to evaluate William's choice of a visitation supervisor. After once again considering the minors' wishes, the court properly ensured that there would be contact between William and the minors.
We disagree with Agency's position that the court made an implied finding that William would have no visits with Jennifer because visits would be detrimental to her. The court's orders for visitation as to all three minors remained in effect. Until the hearing on April 22, 2009, Jennifer had declined to visit William, but was addressing her feelings about him in therapy, as ordered by the juvenile court. Jennifer's stated willingness to communicate with William by telephone was the first step toward reestablishing their relationship. The court had no basis to find that visitation would be detrimental to Jennifer. In fact, the court's order for telephone calls ensured that there would be ongoing contact between Jennifer and William, while still protecting Jennifer's best interests.
DISPOSITION
The orders are affirmed.
WE CONCUR, McCONNELL, P. J.,O'ROURKE, J.