Opinion
B302816
08-31-2020
In re K.T., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.T., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP06287) APPEAL from a judgment of the Superior Court of Los Angeles County, Craig S. Barnes, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
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FACTUAL AND PROCEDURAL BACKGROUND
On October 1, 2018, the Los Angeles County Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition on behalf of 13-year-old K.T. On December 6, 2018, the juvenile court sustained two counts against father: one count of risk of physical harm under section 300, subdivision (a), and one count of failure to protect under section 300, subdivision (b). The sustained physical harm count alleged father physically abused K.T. by punching his chest on one occasion, punching him in the stomach on another occasion, and striking his son with a belt. The sustained failure to protect count against father alleged the same facts.
Subsequent statutory references are to the Welfare and Institutions Code.
We refer to the minor by his initials to protect personal privacy. (See Cal. Rules of Court, rules 8.90(b)(4), 8.401(a)(2).)
Because this appeal solely involves a narrow question of the scope of the juvenile court's exit order, a lengthy factual summary is unnecessary.
K.T. was declared a dependent of the juvenile court, removed from father's custody, and placed in mother's custody. The court ordered various services for father, including individual counseling, conjoint counseling, parenting classes, and anger management.
At the September 18, 2019 review hearing, DCFS reported K.T. and mother were doing well and father was fully complying with all court orders. K.T. indicated he wished his visits with father to remain supervised. DCFS recommended termination of dependency jurisdiction with the following exit order: mother was to have primary physical custody; the parents were to share legal custody; and as to visitation, father's visits were to remain monitored, and father was to have unmonitored telephone calls.
After father indicated he contested DCFS's recommendations, the court held a contested hearing granting father unmonitored visits with K.T. for two hours per week in a neutral location, in addition to four hours of unmonitored visits.
In a last minute information statement filed by DCFS in anticipation of the October 31, 2019 contested review hearing, DCFS reported father continued to have supervised visits with K.T., as well as telephonic contact. Father reported he had not initiated unmonitored visits because his son did not feel safe doing so. K.T. told social workers "he would like everything to remain the same as scheduled." He also told the social worker that he did not feel safe alone with father and did not want to attend any unmonitored visits. He wanted his visitation with father to remain supervised.
At the contested judicial review hearing, K.T.'s counsel addressed the issue of a family law order (issued in 2011) and legal custody of K.T. as follows: "I know the issue of legal custody got brought up in chambers. I think a way to clarify that would be to give the mother tie-breaking authority. Obviously I'm hoping most of the time . . . it won't be a problem but at the end of the day to resolve it, it would have to be the mother who has the final say."
The juvenile court ruled as follows: "Continued supervision of the child is no longer necessary and jurisdiction is terminated. The court's granting joint legal custody. If there's a need for a tie breaker, mother's vote will prevail. It will be primary—physical custody with mother. In terms of visitation, it would be monitored with a monitor that the parents can agree upon. If they cannot agree, father shall pay for a monitor. Six-hour minimum visitation."
The juvenile court's accompanying minute order, issued October 31, 2019, indicated as follows: "The [c]ourt grants mother sole physical and parents joint legal custody of the minor. Mother is to have the tie breaking decision. Father is to have monitored visits, a minimum of six hours per week. The monitor is to be agreed to by the parents or a paid professional by father. Father is to have unmonitored phone calls."
On November 1, 2019, the juvenile court signed a family law order granting mother sole physical custody and the parents joint legal custody. An attachment to the custody order additionally stated: "[Mother and father] are to share joint legal custody of [K.T.] However, in the event that the mother and father fail to reach a mutual agreement, mother will have tie-breaking authority. For example, if [K.T.] requests therapy and father opposes therapy but mother agrees to therapy, mother's decision to allow [K.T.] to attend therapy will govern."
A separate attachment to the custody order (entitled "Visitation (Parenting Time) Order—Juvenile") addressed father's visitation and indicated he would have supervised visitation for six hours per week and unmonitored telephonic contact. Visits were to be monitored by someone mutually agreed upon by the parents or by a professional monitor paid for by father.
The juvenile court terminated jurisdiction. Father timely appealed.
DISCUSSION
Father argues that in its oral statements on the record, the juvenile court "appears to have ordered that if [K.T.] did not wish to visit with [father], the mother had [the] authority to issue a 'tie breaker' vote either approving or denying paternal visitation." Such an order, father argues, is erroneous as a matter of law as an improper delegation of judicial authority. (See, e.g., In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 ["when the [juvenile] court delegates the discretion to determine whether any visitation will occur[,] . . . the court improperly delegate[s] its authority and violate[s] the separation of powers doctrine"].)
DCFS agrees that if the order here under review in fact granted tie-breaking authority to mother to determine when visitation would occur, such an order would be erroneous.
Father does not contest the juvenile court's award of "tie breaking" power to mother as it applies to the incidents of legal custody. Thus, the sole issue on appeal is whether mother's "tie breaking" authority extends to father's visitation rights.
In his reply brief, father claims he is not misrepresenting the juvenile court's order. We here quote father's reply in full: "On [page] 52 of the reporter's transcript, the minors' attorney Mr. [John] Kim, requested of the court that mother should be given a tiebreaker vote as to visitation. Kim stated that 'they are going to occur,' referring to visitation, 'so . . . it would have to be mother who has the final say.' " Father concludes, "[i]t is patently clear then, that, in its statements on the record, the court granted the mother authority to issue a 'tie breaker' vote either approving or denying paternal visitation."
Whatever confusion father believes arises from this exchange on the record, we find the court's October 31, 2019 minute order, which we reproduced in pertinent part above, clearly indicates the tie breaking authority only applies to legal custody. The November 1, 2019 custody order is also clear. The court's illustration of how the "tie breaking" power it was granting to mother worked was a hypothetical disagreement over therapy: "For example, if [K.T.] requests therapy and father opposes therapy but mother agrees to therapy . . . ."
Father is incorrect that the custody orders issued in this case are ambiguous as to the scope of mother's "tie breaking" authority. Mother has "tie breaking" authority as it applies to the rights and obligations of legal custody. The court did not give mother "tie breaking" authority over visitation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CHANEY, J.
BENDIX, Acting P. J.