Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD08-3284
Marchiano, P.J.
Defendant J.R. is the father of seventeen-year-old R.R., a dependent child of the juvenile court. He appeals from the jurisdictional and dispositional findings and orders of the juvenile court. Father contends that R.R. was erroneously allowed to testify outside of his presence at the jurisdictional/dispositional hearing; that the jurisdictional and dispositional findings are not supported by substantial evidence; and that the juvenile court erroneously delegated its duty to determine visitation. We reject Father’s contentions and affirm.
I. FACTS
On October 10, 2008, respondent San Francisco Department of Human Services Agency (Department) filed a dependency petition (Welf. & Inst. Code, § 300) on behalf of R.R., then 16, against Father and R.R.’s mother, M.N.
M.N. is not a party to this appeal.
The Department alleged that Father had failed to protect R.R. from serious physical harm or illness (§ 300, subd. (b)). The Department alleged five specific instances of failure to protect: (1) Father took R.R. to a clinic, then took away her house keys, forcing her to spend the night at a friend’s house; (2) Father hit R.R. in the head with a plastic water bottle; (3) Father grabbed her by the throat and choked her, and held a knife to her throat; (4) Father threatened to burn her hair and throw her out of a window, and R.R. was afraid of Father; and (5) Father has substance abuse problems for which he requires assessment and treatment, i.e., R.R. reported that he often drinks beer continuously.
A sixth allegation was dismissed and is not at issue on appeal.
The Department also alleged that Mother was in El Salvador and was unable to care for R.R. (§ 300, subd. (g).)
The October 10 detention report describes the incidents alleged against Father. R.R. told a Department social worker:
(1) On October 6, Father took her to a clinic for immunizations. While there, he saw a hickey on her neck, started yelling at her, and demanded she give him her house key. Father left R.R. at the clinic. R.R. walked home and waited two hours for Father to open the door. She telephoned him without success, and ended up spending the night at a friend’s house.
(2) In early October, Father, while intoxicated, grabbed a plastic water bottle and hit her in the head, leaving a bump.
(3) In February, Father grabbed R.R. by the throat and choked her, telling her to tell him that she loved him and cared for him. R.R. was scared and complied. Father then pulled out a knife and held it to her throat. He put the knife away when relatives came home.
(4) Also in early October, Father yelled at R.R., and threatened to burn her hair and throw her out of a window. R.R. was afraid of Father and thought he really would burn her hair and throw her out of a window, because of the prior knife incident.
(5) Father “often drinks beer [for] weeks straight and will not leave the house when he drinks alcohol.”
On October 7 and 8, social workers visited Father at his home. He had been drinking, smelled of alcohol, had slurred speech, and was incoherent. One worker felt that R.R. was not safe in the home. Father denied R.R.’s reports of physical abuse and said he did not realize she was locked out of the house.
On October 14, the juvenile court detained R.R. and placed her in foster care.
The November 21 jurisdictional/dispositional report noted that R.R. continued to reside in foster care. Father continued to deny R.R.’s allegations against him, but did admit throwing water at her from a glass he was drinking from. He suggested R.R. was rebelling against his strict rules. He claimed he had no drinking problem, and that his drinking was “occasional.” He sometimes drank when he is disappointed with R.R.’s behavior; then he drinks 12 beers a day, at home, for two days. Father agreed to wear a SCRAM bracelet for one month, from October 14 to November 14, and no alcohol violations were reported.
SCRAM stands for “Secure Continuous Remote Alcohol Monitor.”
The Department reported that Father and Mother separated in El Salvador when Father immigrated to the United States. R.R. was three. Mother left R.R. and her sister to be raised by the maternal grandmother, because Mother started a new family with another man. After a year in this country, Father remarried. When R.R. was 13, Father obtained his legal residence and brought R.R. to live with him. Mother continues to live in a rural area of El Salvador.
The Department reported a referral in February based on Father’s holding a knife to R.R.’s neck and being an alcoholic. As a result of the referral, R.R. stayed with an uncle from February to August, when she returned to Father’s home. Father reported R.R. did not obey his rules. She also had an older boyfriend and he worried about her staying out too late.
R.R. was doing well in foster care and was obeying the rules of the home. She told the Department she was not ready to go home to Father because when she is under his direct care, “he starts yelling and she does not feel comfortable.” R.R. reported Father could go weeks without drinking, but then would drink for two straight weeks and “start[] talking nonsense.”
Father and R.R. had three unsupervised visits, apparently without the Department’s prior knowledge, on October 29, October 30, and November 3. These visits involved R.R.’s going to Father’s house. There was a supervised visit on November 5, after which the social worker requested that unsupervised visits cease pending consulting with R.R.’s attorney. Nevertheless, R.R. went to Father’s house for unsupervised visits on November 6 and November 10. R.R. said she felt safe visiting Father unsupervised for an hour or so—but the visits took place during the period Father wore the SCRAM bracelet and was not drinking alcohol. The Department recommended a structured schedule of specific days and hours of visitation.
The Department characterized the present case as one of “an unfortunate... lack of relationship and connection between” Father and R.R. Father was separated from R.R. when she was very young and reacquainted with her 11 years later, when she was 13. The lack of contact made Father a “stranger” to R.R., and they related more easily as friends than father and daughter, making visits easier than living together. The Department recommended reunification services including family therapy to facilitate communication, and that R.R. remain in out-of-home placement.
The jurisdictional/disposition hearing was held on March 6, 2009. A Department social worker testified about R.R.’s reports of Father’s excessive drinking, and of the incidents where Father locked her out of the house, threw a water bottle at her, and choked her and put a knife to her throat.
R.R. testified. On October 6, Father took her to a clinic, then took her keys and left her there. She walked home and knocked on the door. She also called Father on the phone. Father did not answer the door or the phone. She waited outside a long time. She was scared because she did not know where to go. She ended up spending the night at a girlfriend’s house.
Father physically abused R.R. ever since she started to live with him. He threw a water bottle at her, leaving a bruise. He also threw a glass of water at her. He hit her with his hands and once with a belt. He once tried to choke her. The belt incident and the choking incident occurred in February, i.e., February 2008. Father threatened to burn her hair and throw her out a window. This happened the same day as the bottle throwing incident, which could have also been in February.
Father hit her at least once when he had been drinking alcohol. Father “drinks a lot.” He can drink 24 beers in one day. When he drinks he becomes angry and aggressive, and yells at her. She feels threatened to be in Father’s home.
R.R. is sometimes afraid to visit with Father.
At the conclusion of the testimony, the juvenile court found true the five jurisdictional allegations against Father discussed above. The court found that (1) Father took R.R. to a clinic and then took away her house keys, and she had to spend the night at a friend’s house because Father was not home and did not answer her call; (2) Father threw a plastic water bottle at R.R. and hit her in the head, leaving a bump; (3) R.R. reported Father grabbed her by the throat and choked her, and held a knife to her throat; (4) R.R. reported Father threatened to burn her hair and throw her out of the window, and she was afraid of him; and (5) Father has substance abuse problems for which he needs treatment, and R.R. reports he often drinks continuously. The court also found true the allegation against Mother, i.e., that she lived in El Salvador and was unable to care for R.R. The court observed:
“I see this case at this point as having—the biggest problem is [Father’s] untreated alcoholism. I think it’s significant and admirable that [Father] wore the SCRAM bracelet for 30 days and successfully completed that 30-day program.... [¶] Not drinking for 30 days is not going to cure the problem. And I think that once [Father’s] alcohol abuse is brought under control, then this family can be successfully reunified. All the evidence that I have heard today seems to indicate that all the problems stem from alcohol abuse. And that is really where I would like this case to focus from this point forward.”
The court found “by clear and convincing evidence... that there is a substantial danger to the physical safety, protection or physical or emotional well-being of [R.R.], or would be if she were returned home at this time, and there are no reasonable means by which her health may be protected without removing her from the parents’ physical custody.”
The court ordered that R.R. continue to be placed in foster care and that Father participate in reunification services.
With regard to visitation, Father’s counsel expressed concern that “visitation cannot be left to the determination of the minor.” Counsel asked for “a specific visitation schedule.” The court ordered that Father “receive minimum visitation as set forth in the case plan.” That plan specified that Father was required to visit R.R. “on a regular basis prior to reunification and maintain[] other contact and involvement, as arranged by the Child Welfare Worker.”
II. DISCUSSION
Father contends that R.R. was erroneously allowed to testify outside of his presence at the jurisdictional/dispositional hearing; that the jurisdictional and dispositional findings are not supported by substantial evidence; and that the juvenile court erroneously delegated its duty to determine visitation. We reject Father’s contentions for the reasons set forth below.
Testimony Outside of Father’s Presence. Prior to the jurisdictional/dispositional hearing, R.R. moved for permission to testify outside the presence of Father. R.R. invoked section 350, subdivision (b), which provides:
“The testimony of a minor may be taken in chambers and outside the presence of the minor’s parent or parents, if the minor’s parent or parents are represented by counsel, the counsel is present and any of the following circumstances exist:
(1) The court determines that testimony in chambers is necessary to ensure truthful testimony.
(2) The minor is likely to be intimidated by a formal courtroom setting.
(3) The minor is afraid to testify in front of his or her parent or parents.
After testimony in chambers, the parent or parents of the minor may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents.” (Italics added.)
In R.R.’s written motion, filed February 25, 2009, R.R.’s counsel stated:
“During a February 17 school visit, that included minor’s counsel and her social workers, [R.R.] expressed her aversion to testifying. She stated that she did not want to testify, but would be willing to do so as long as her father was not present. When asked why she did not want to testify in front of her father, [R.R.] expressed concern over having to discuss the details of the petition’s allegations in front of him and feared the ramifications that [it] would have [on] their relationship.”
The motion was not accompanied by a declaration of R.R. expressing her fear to testify in Father’s presence. Indeed, the motion was not accompanied by a declaration from anyone, i.e., counsel or a therapist, attesting under penalty of perjury that R.R. feared testifying in Father’s presence.
At the outset of the jurisdictional/dispositional hearing, Father’s counsel opposed the motion: “the allegations are serious allegations, and my client is entitled to confront witnesses and have them cross-examined.” Counsel argued that Father “is entitled to hear from his daughter exactly what these allegations are, and I think that to have her testify outside of his presence would be in this situation not appropriate and certainly not going to his right of confrontation.”
R.R.’s counsel responded that R.R. was afraid of Father because “[h]e has physically hurt her before, and she is not sure that that wouldn’t happen again as a result of her testifying.”
Father’s counsel replied that her ability to represent her client would be “compromised” by the need to take notes during R.R.’s testimony, leave the courtroom to confer with Father, or to have Father review a transcript of her testimony to see if there would be additional questions for cross-examination.
Father’s counsel did not dispute R.R.’s assertion of fear or complain that the source of the claim of fear was unsworn statements of counsel in the motion.
The juvenile court recognized that Father’s counsel would be in a difficult position, but granted the motion under the statute and under In re Mary S. (1986) 186 Cal.App.3d 414 (Mary S.). R.R. was permitted to testify in open court, outside Father’s presence. Father’s counsel was able to briefly leave court to confer with Father at several points in R.R.’s testimony.
Father contends that the juvenile court’s implied finding that R.R. was afraid to testify in front of Father was not supported by substantial evidence and was therefore an abuse of discretion. Father correctly notes that the unsworn statements of counsel in R.R.’s motion are not evidence, and that the motion was unaccompanied by any declaration. But in determining the issue of R.R.’s fear to testify, the juvenile court was entitled to rely on the Department’s reports, as well as counsel’s statements.
California Rules of Court, rule 5.534(c), which implements section 350, subdivision (b), provides that the three factors which permit a minor’s testimony outside parental presence—the need for truthful testimony, intimidation by a formal court setting, or fear of testifying in front of a parent—may be determined by the court “based on the petitioner’s report or other offers of proof or other evidence....” An offer of proof, supported by Department reports, can be sufficient to support a decision to permit a minor to testify outside the presence of her parent. (See, e.g., In re S.C. (2006) 138 Cal.App.4th 396, 425−426.)
Counsel’s statements in the motion, along with counsel’s oral argument that R.R. feared Father because he had hurt her before and could hurt her again because she testified, amount to an offer of proof. More importantly, the Department’s reports are admissible evidence (§ 355, subd. (b); Cal. Rules of Court, Rule 5.684(c)) and contain more than sufficient information of prior physical abuse—coupled with alcohol intoxication—to sustain a conclusion that R.R. feared to testify in front of Father. Thus, the juvenile court’s implied finding of fear was supported by substantial evidence and its decision to allow R.R. to testify outside of Father’s presence was not an abuse of discretion.
Father makes several arguments in which he essentially asks us to reweigh the evidence before the juvenile court. This we decline to do. We do note, however, Father’s emphasis on the unsupervised visits as an argument undercutting the finding that R.R. feared her father. But as we have observed, these visits occurred during the 30-day period Father wore the SCRAM bracelet. Given the significance of Father’s drinking and its effect on his behavior, visits during a narrow window of sobriety are hardly probative.
Father contends the court’s decision deprived him of his right to confrontation. But in dependency proceedings the overriding concern is for the child’s welfare. Where a court properly exercises its discretion to permit testimony outside parental presence, the parent’s right of confrontation is adequately protected by his counsel’s confrontation of the child witness. (Mary S., supra, 186 Cal.App.3d at pp. 418−420.)
In light of our upholding of the juvenile court’s section 350 order, we need not decide any issue of waiver. But we do note that Father never contested below R.R.’s assertion of fear. Nor did Father complain that the source of the information was something other than a declaration under penalty of perjury. Father only argued his ability to cross-examine would be impeded. As we explain in the text, Father’s right of confrontation was not violated and the record shows his counsel ably cross-examined R.R.
Sufficiency of Jurisdictional Findings.
Father contends the findings of dependency jurisdiction are not supported by substantial evidence.
Father admits there was a proper jurisdictional finding as to Mother under section 300, subdivision (g), and that dependency jurisdiction over a child requires only one ground against one parent. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875−876.) He nevertheless asks this court to review the sufficiency of the evidence on each and every jurisdictional ground determined against him. We decline to engage in the thorough, point-by-point review Father seems to request, but simply note that the jurisdictional findings against him are supported by substantial evidence.
Our task “begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) We must resolve all conflicts in the evidence in favor of the ruling and “indulge in all legitimate inferences to uphold the court’s order.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We cannot reweigh conflicting evidence to change a juvenile court’s dependency determination. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
Section 300, subdivision (b) describes a dependent child as follows:
“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... her parent... to adequately supervise or protect the child,... 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... substance abuse....”
Here, the evidence shows Father has an alcohol problem and that he drinks heavily when he is disappointed with R.R.’s behavior. He has struck her with a belt and grabbed her by the throat. R.R. reported he held a knife to her throat. He has threatened to burn R.R.’s hair and throw her out a window. These findings are more than sufficient to show a substantial risk of future serious physical harm within the meaning of the statute.
Father admits his past behavior is probative of current conditions, but argues that past behavior alone cannot suffice for jurisdiction under section 300, subdivision (b), and the court must assess the conditions at the time of the jurisdictional hearing—which in this case was held many months, perhaps a year, after some of the events used to establish jurisdiction. Father relies on language from In re Rocco M. (1991) 1 Cal.App.4th 814, 824, which has been substantially discredited. In both In re J.K. (2009) 174 Cal.App.4th 1426 and In re David H. (2008) 165 Cal.App.4th 1626, the courts rejected the Rocco M. language and held that past infliction of serious physical harm was sufficient for dependency jurisdiction. (J.K., supra, at pp. 1435−1439; David H., supra, at pp. 1641−1644.)
The juvenile court’s findings of dependency jurisdiction as to Father are supported by substantial evidence.
Sufficiency of the Dispositional Findings.
Father contends the juvenile court’s dispositional findings are not supported by substantial evidence. We must review the record in the light most favorable to the dispositional order. (In re Mariah T. (2008) 159 Cal.App.4th 428, 440−441.)
Father challenges the court’s findings, pursuant to section 361, subdivision (c), that “by clear and convincing evidence... that there is a substantial danger to the physical safety, protection or physical or emotional well-being of [R.R.], or would be if she were returned home at this time, and there are no reasonable means by which her health may be protected without removing her from the parents’ physical custody.” Father essentially views the evidence supporting jurisdiction in the light most favorable to him, and claims there is not clear and convincing evidence of substantial danger on return to the home, or of reasonable means to protect R.R.’s health without removing her from Father’s custody.
Father minimalizes his behavior and proposes alternative dispositional methods which the court, after viewing the evidence before it, chose not to use. The evidence shows Father’s severe alcohol problem which led him to physically abuse R.R. and create an environment of fear. The court was justified in removing R.R. from the home unless and until that problem was resolved.
Alleged Delegation of Visitation.
Father contends that the juvenile court impermissibly delegated its duty to determine visitation to the Department.
A juvenile court has the sole power to determine whether visitation is to occur, and cannot delegate its authority to grant or deny visitation to a social worker or social services agency—or, indeed, to any third party. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008−1009 (Christopher H.); In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373−1375 (Moriah T.); see In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504−1505 (Hunter S.).)
Thus, reviewing courts have reversed visitation orders which vest the decision to determine whether visitation will or will not occur in the social service agency (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1688, 1690−1691 (Shawna M.) [visitation to be “approved by” the agency]) or in the child or the child’s therapist (Hunter S., supra, 142 Cal.App.4th at pp. 1504−1505; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.)
But a court is free to delegate to the social services agency “discretion to determine the time, place and manner of the visits,” i.e., to manage the details of visitation. (Christopher H., supra, 50 Cal.App.4th at p. 1009; see Moriah T., supra, 23 Cal.App.4th at p. 1374; In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 (Jennifer G.).) “Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority.... [Citations.]” (Christopher H., supra, at p. 1009 [italics added].)
Accordingly, a visitation order which provides for “reasonable” visitation is not an impermissible delegation of authority. (Christopher H., supra, 50 Cal.App.4th at pp. 1008−1010.) The Christopher H. court specifically distinguished the holding of Shawna M. (id. at pp. 1010−1011), concluding that an order for reasonable visitation amounted to a court order for visitation and “limits the agency’s discretion by a standard of reasonableness based on the needs of the particular family unit.” (Id. at p. 1011.)
Similarly, a visitation order which provides that a parent visit “regularly,” with a delegation to the agency to arrange and monitor visitation consistent with the well-being of the minor and with discretion to determine the time, place, and manner of visitation, is not an impermissible delegation. (Moriah T., supra, 23 Cal.App.4th at pp. 1374−1377.) Moriah T. reasoned that by requiring the parent to visit “regularly,” the juvenile court “exercised its judicial authority [to] determine[] that [the parent] had a right to visit... regularly,” and merely delegated to the agency “the responsibility of managing the ministerial details of visitation.” (Id. at pp. 1374−1375.)
The visitation order in the present case requires that Father “receive minimum visitation as set forth in the case plan.” The plan specifies that Father was required to visit R.R. “on a regular basis prior to reunification and maintain[] other contact and involvement, as arranged by the Child Welfare Worker.”
Under the reasoning of Christopher H. and Moriah T., this order is valid. By ordering that Father receive regular visitation, the juvenile court has determined that Father has a right to regular visitation and that such visitation shall take place. The court has delegated to the Department only the duty to arrange the details of visitation. This is proper. We note that “regular” is a term of common usage, easily implemented, and that a 17-year-old minor can certainly contribute to a discretionary discussion between herself, Father, and the Agency as to the precise contours of regularity.
Father contends the court was required to designate a schedule of visitation, or at least determine the frequency and length of the visits. There is no such requirement. Father relies on language from Jennifer G. which suggests the court “should determine... the frequency and length of visitation.” (221 Cal.App.3d at p. 757.) This language is not mandatory, and in any case is both dictum and unsupported by any citation to authority. Both Christopher H. and Moriah T. have declined to follow the Jennifer G. language, and agree that “the visitation order need not specify the frequency and length of visits.” (50 Cal.App.4th at p. 1009; see 23 Cal.App.4th at p. 1375.)
Father also relies on language from In re S.H. (2003) 111 Cal.App.4th 310, 313, that suggests a court must specify “a minimum level” of visitation. That phrase is used less than precisely in that opinion, which specifically acknowledges that a court need not specify the frequency and length of visitation, citing Christopher H., supra, 50 Cal.App.4th 1001, 1009, and Moriah T., supra, 23 Cal.App.4th 1367, 1376. (S.H., supra, at p. 319.) In any case, the issue in S.H. was whether the child had the sole power to determine visitation. (Id. at pp. 316−320.)
The juvenile court did not improperly delegate its duty to determine visitation.
In light of this conclusion, the Department’s motion to consider a recent status review report, either as additional evidence on appeal or by judicial notice, is denied as moot.
III. DISPOSITION
The jurisdictional and dispositional findings and orders are affirmed.
We concur: Margulies, J., Dondero, J.
Subsequent statutory references are to the Welfare and Institutions Code.
All dates are in 2008 unless otherwise indicated.