Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super.Ct. No. DP000197
Duffy, J.
A. H., the mother of S. H., appeals from the juvenile court’s determination that she is to have no visits with him. She argues that the juvenile court incorrectly dispensed with the visitation issue, declining to decide it and leaving it for the family court to determine. We disagree and will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
I. Background of S. H. (the Minor)
S. H. will turn 14 in June 2011. He comes from a difficult background, including abuse from family members, and has major emotional and behavioral problems. He was expelled from a special-needs school in 2006. This followed a history of various types of abuse, physical and verbal, that he inflicted on schoolmates and other people both in his age group and outside of it. Despite his expulsion from that school, he remained in the educational system until he assaulted a teacher in his behavior-disorder class in another elementary school in 2007. He had threatened to kill his teacher by strangulation and by using a chain saw. He was barred from that school and placed in in-home independent study.
In 2008, a teacher assessed S. H. as a possible sociopath and stated that “he has the potential to behave like a ‘Columbine’ teenager” later in life. He continued to physically assault schoolmates, and in 2009, his foster father asked for him to be removed from their home after he tormented a younger child, leaving him scratched and bruised. The Santa Cruz County Sheriff’s Department took a crime report and, classifying the incident as an assault with a deadly weapon under the California Penal Code, described the incident as involving “hitting & poking with sticks.” S. H., according to the report, was “hitting [the victim] as if he [were] playing the drums on his head. [S. H.] said, ‘Hey look. I’m playing the drums. It’s hollow in there.’ ” S. H.’s therapist reported about the same time that he “continues to face a number of very difficult behavioral challenges and reverts... to problematic behaviors frequently.”
Two months later, S. H., now living in a different foster home, “was removed... after he cut another foster kid[’]s forearm with a sharp plastic item.”
At this point, S. H. was 12 years old.
Earlier in life, and as late as 2008, S. H. had inflicted a number of assaults on his grandmother, M. H., when she allowed him to live in her home after child welfare authorities removed him from his mother’s care.
S. H. now lives with his father, who is not a party to this appeal, in Oregon.
We described the family’s circumstances in a prior opinion resolving an appeal by S. H.’s grandmother. (In re S. H. (May 10, 2010, H034376) [nonpub. opn.].) On August 16, 2010, this court took judicial notice of the record in that case for purposes of this case. The record on this appeal contains additional information, particularly regarding events in 2009 and 2010, and we include it as necessary for a complete description of the case as it stands.
II. Background of A. H. (the Mother)
In 1999, when S. H. was two years old, A. H. was arrested for domestic violence involving her adult companion. She was required to enroll in a substance abuse program and have herself tested for consumption of contraband substances, and in 2000, after A. H. failed to participate in treatment and tested positive for cocaine, S. H. was placed with his grandmother and A. H.’s family reunification services were terminated.
Despite A. H.’s status, S. H.’s grandmother continued to allow her to have contact with S. H. or acquiesced in her having such contacts with him. These contacts, which had occurred as recently as 2008, could be deleterious, according to a social worker’s report that did not elaborate on any older incidents. The report did discuss ones that are more recent. In 2007, S. H.’s grandmother obtained a restraining order against A. H. but permitted her to flout it. In that same year, police were called to the house because a woman, perhaps A. H., was heard slamming doors and yelling. On April 12, 2008, A. H. was arrested on felony child abuse and misdemeanor restraining order violation charges after she struck S. H. with her fist in a food store, an event recorded on a surveillance video recording that the police later viewed.
Elsewhere the record contains a number of child welfare accusations against A. H. from S. H.’s earliest years, but the more serious accusations were determined to be unfounded, inconclusive, or pending evaluation.
III. General Procedural Background
As we explained in our prior opinion involving the same family, In re S. H, supra, H034376 (nonpub. opn.), S. H. has been the subject of at least two sets of juvenile dependency proceedings in this state. A prior set of such proceedings was resolved by appointing S. H.’s grandmother to be his guardian (see Welf. & Inst. Code, § 366.26, subd. (b)(2)) after A. H.’s parental rights were terminated.
All further statutory references are to the Welfare and Institutions Code.
On June 3, 2008, the Santa Cruz Human Services Department (department) filed a modification petition (§ 388) requesting that the juvenile court reinstate jurisdiction to provide services to the grandmother, M. H., and S. H. The department submitted a long report detailing the family’s problems. On June 17, 2008, the Santa Cruz Juvenile Court appointed counsel for the grandmother, who remained S. H.’s guardian. The court granted the modification petition and reinstated jurisdiction, i.e., resumed S. H.’s status as a dependent of the court. S. H. continued to be in his grandmother’s care, the guardianship remained in effect, and the department was directed to prepare a case plan for the two.
The department attempted to provide permanency placement services to S. H. and M. H., but S. H. continued to attack his grandmother and misbehave in school. The grandmother requested that the guardianship be ended. The department filed a supplemental (§ 387) petition to remove S. H. from the grandmother’s home. The juvenile court agreed and detained S. H. on November 12, 2008.
Early in S. H.’s life, his biological father, an Oregon resident whom the authorities had been unable to contact previously, expressed a lack of interest in parenting S. H., but in 2009 he changed his mind and a social worker told the juvenile court that S. H. and his father had had a “wonderful” first visit on the day before the hearing and that the department hoped to place S. H. with him in Oregon.
IV. The Proceedings Leading to This Appeal
Prior to a selection and implementation hearing in 2009 (§ 366.26), the juvenile court authorized A. H. to visit S. H. under controlled circumstances.
In September of 2009, pursuant to a mediated agreement, the juvenile court and parties resolved that S. H. would remain a dependent of the court but that the permanent placement plan would be to send him to Oregon to live with his father. S. H. and A. H. would visit four times a year, twice in Oregon and twice in Santa Cruz. It appears that the court allowed A. H. to write letters to S. H. In addition, the court ruled that she could telephone him at least once in every non visitation month, but that the father could monitor the calls for improprieties and end them if they occurred.
In preparation for a six-month review hearing that was held on March 2, 2010, the department recommended that the case be dismissed and that the father be given full legal and physical custody because S. H., though still troubled and misbehaving, was happy living with his father in Oregon and his father was able to exert a measure of control over him.
In the same report, the department said that S. H.’s father said that S. H. did not want to telephone A. H. At the six-month review hearing, it emerged, however, that S. H. was willing to maintain e-mail contact with A. H. He was willing to consider visiting her but did not want to be scheduled to visit her on a regular basis-and he did not want A. H. to visit him in Oregon at all. It would also emerge at the final hearing that S. H. had refused one visit to A. H. in Santa Cruz, on April 21, 2010, and would not get on the airplane that would fly him to California.
About this time, A. H. was informing the juvenile court that she could not afford to visit S. H. in Oregon; in addition, she opposed the issuance of any exit orders that would not include a provision for her to be able to have visits with S. H.
At a hearing on April 27, 2010, the juvenile court took up the dismissal and exit orders questions. The court ruled in favor of dismissal and against any maternal visits.
A. H. stated that she remained opposed to the case’s being dismissed and requested joint custody of S. H. and at least two visits with him annually in Oregon. She leveled a series of allegations against S. H.’s father: that he “is not stable”; that he wandered from job to job and place to place; that his plans to take S. H. with him on a trip to southeast Asia were suspicious, given his purportedly low income; and that the father was uninterested in classes to improve his parenting skills. The mother insisted that S. H. suffered from post-traumatic stress disorder because of an abusive teacher and needed “skilled therapy.”
The juvenile court interrupted the proceedings to inquire about S. H.’s condition off the record. Back on the record, the court summarized the information it had obtained: “There has been no information from [the father] that he plans on leaving... Oregon. He’s established in his work as a chef.... There has been no indication from the school or the social worker or the Oregon social worker that checks in every month that there’s any need for counseling for [S. H.] at this time. There’s been no behavioral concerns from the school.... [or] from dad or the Oregon social worker. They’ve indicated... that [S. H.] is very stable.... [¶]... He’s indicated that he likes living with his dad.” “[H]e’s doing well in his school, he’s attending everything that’s being required, nothing negative [is being] reported from the school.” The court summarized, “what is clear to the Court is that there has been an overall improvement on this child dramatically since he left Santa Cruz.” “I think that some of [the reasons are] a dramatic change in his environment.”
In sum, the juvenile court ruled against A. H. because S. H. was doing well in Oregon. It gave the father full legal and physical custody and did not provide for any visits by A. H. with S. H. The court specifically stated at the hearing, “the Court is ordering no visitation.” The court implied that the 2009 communications arrangement could continue, i.e., the arrangement in which the court had authorized telephone calls between A. H. and S. H., with the proviso that S. H.’s father could end a telephone call if he thought it was not benefiting S. H.
We are mindful that the social worker’s report prepared for the six-month review hearing held on March 2, 2010, was less sanguine; as noted, it described S. H. as still troubled and misbehaving, though doing better than he had done in California.
The juvenile court commented that if A. H. wanted to visit S. H. in the future, she should try to negotiate such visits with the father through the social worker, and if such efforts failed and A. H. wanted a different legal relationship with S. H. that would allow her to visit S. H., she could proceed in family court. “The family will have to go to Family Law Court and figure that piece out, ” it stated.
DISCUSSION
As noted, A. H. claims that the juvenile court abdicated its role of overseeing visitation, incorrectly ruling that the family court should decide on future visitation rights.
We do not agree.
“[S]ection 362.4 provides that when jurisdiction is terminated over a minor who has been adjudged a dependent child, the juvenile court may issue an order determining the custody of, or visitation with, the child.” (In re Maribel T. (2002) 96 Cal.App.4th 82, 84, fn. 2; see In re Marriage of David & Martha M. (2006) 140 Cal.App.4th 96, 99.) “The statute requires such ‘exit’ orders to become a part of [any] relevant family law file. It also provides that custody and visitation orders remain in effect in [any] family law action ‘until modified or terminated by a subsequent order.’ ” (In re John W. (1996) 41 Cal.App.4th 961, 970, fn. omitted.)
In 2000, some years after John M. was filed, new subdivision (d) to section 302 made clear that “[a]ny custody or visitation order issued by the juvenile court at the time the juvenile court terminates its jurisdiction pursuant to Section 362.4” is to be treated as a final judgment for all purposes and therefore can be modified by the family court only on a showing of “a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child.” (Ibid.) (See In re Marriage of David & Martha M., supra, 140 Cal.App.4th at pp. 98, 100-103.)
Exit orders thus made on termination of dependency jurisdiction are reviewed for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) This is a highly deferential standard, understandably so given the juvenile court’s familiarity with this case. (The court commented during the final hearing that it “originally became acquainted with [S. H.] back in, I believe, June of 2008... [a]nd at that time, he had severe emotional disturbance.”) We “may not disturb the order unless the court ‘ “ ‘exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’ ” ’ ” (Ibid.)
A juvenile court may order that a parent have no visitation, and if it does so the order will “in effect... require [the parent] to later move the family court to amend the order if [the parent] wish[es] to secure visitation.” (In re Chantal S. (1996) 13 Cal.4th 196, 214.) As noted, after the juvenile court has properly terminated jurisdiction and transferred its custody and visitation orders to the superior court (§ 362.4), a party may obtain relief from or modification of that order in family court if the parent can show that it is in the best interests of the child (In re Michael B. (1992) 8 Cal.App.4th 1698, 1705) and, since 2000, that there has been a significant change in circumstances (§ 302, subd. (d)).
The juvenile court here ordered that A. H. have no visitation, and there is nothing legally objectionable about its action, nor do we discern any abuse of discretion, given the record in this case.
A. H. argues that “the court should have assumed the role of parens patriae as to [S. H.] and helped him... by fashioning a workable visitation and/or contact schedule with mother.” The court was, however, acted as parens patriae by protecting S. H. from his mother in accordance with his explicit wish not to see her and his implicit wish to be protected from her, the latter being shown by his refusal to be flown to Santa Cruz from Oregon for a visit with her. She had a history of abusing and/or neglecting him and scant, if any, history of helping him. If for no other reason than “[n]o visitation order shall jeopardize the safety of the child” (§ 362.1, subd. (a)(1)(B)), the court cannot be said to have abused its discretion by doing what its interpretation of the history between A. H. and S. H. arguably compelled it to do.
A. H. argues that “the court abused its discretion when it refused to make visitation orders for [S. H.] and her before terminating jurisdiction, but instead instructed her to go to family law court to ‘figure it out.’ ” (In fact the juvenile court said, “figure that piece out, ” but we understand A. H.’s point.) The court, however, did not do that. It ordered no visitation for A. H., as it had the authority to do, but also commented, in what was in effect an aside or rumination, that its ruling was not necessarily the last word, given that a family court judge could later intervene under the relevant law if future circumstances warranted it doing so. (See § 302, subd. (d).) By operation of subdivision (d) of section 302, the court’s orders had the effect of reducing them to a final judgment; and if that were not enough, the final order, on which the court checked “[n]o visitation” for A. H., was styled as a “custody order - juvenile - final judgment.” (Compare In re Marriage of David & Martha M., supra, 140 Cal.App.4th at p. 102 [cases may occur in which the exit orders and/or the parties’ conduct evince a lack of intent for the orders to be permanent].)
In his reply brief, A. H. also argues that the juvenile court’s “reliance on father to facilitate visitation and other contact was an improper delegation to him of the power to determine whether visitation would occur at all.” Of course, the court ended all visitation, rendering A. H.’s first point moot. Along with visitation, however, A. H. may be referring to the court’s giving permission to S. H.’s father to end telephone calls between him and A. H. that the father thought were not proceeding to S. H.’s benefit. The answer to this point is contained in In re Chantal S., supra, 13 Cal.4th 196: “Even assuming arguendo that the order delegated too much judicial discretion, [appellant] is not prejudiced thereby.... [O]n this record the juvenile court would have been within its discretion if it simply denied [her] any visitation. The fact that the juvenile court rejected that course, and instead issued the restrictive order challenged now, amounts to a windfall to [appellant], not a violation of [her] rights.” (Id. at p. 214.) In Chantal S., the appellant had not contested the court’s authority to deny all visitation; by contrast, A. H. does do so here. Nevertheless, the point remains that the court’s implicit subsidiary order, rendered orally at the April 27, 2010 hearing, allowing the telephone-call arrangement to continue, worked a leavening of its no-visitation order, and A. H. could not have been prejudiced by it. (But see In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1478 [an order constituting an unlawful delegation of authority “cannot stand”]; Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686-687 [collecting cases in essence aligned with Donnovan J.]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138-1139.) In our view, the court’s order falls within the ambit of the prejudice analysis set forth in Chantal S. and thus withstands scrutiny.
CONCLUSION
The judgment is affirmed.
WE CONCUR: Rushing, P. J., Grover, J.
Judge of the Monterey County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.