Opinion
B226701
08-18-2011
In re R.V. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JAVIER V., Defendant and Appellant.
Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Maureen L. Keaney, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK79653)
APPEAL from an order of the Superior Court of Los Angeles County, Albert Garcia, Referee. Affirmed in part, reversed in part and remanded with directions.
Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Maureen L. Keaney, under appointment by the Court of Appeal, for Minors.
Javier V. (father) appeals an order of the juvenile court terminating dependency jurisdiction over his two children, R.V. and D.V., granting mother custody of the children and awarding father supervised visitation. We affirm the termination of jurisdiction but reverse the visitation order and remand with directions.
FACTS AND PROCEDURAL BACKGROUND
The children came to the attention of the Department of Children and Family Services (the Department) on August 27, 2009, based on a report that indicated mother's male companion physically abused D.V. At the time of the referral, the children were visiting father in Minnesota.
Mother and the children met with the social worker on September 9, 2009. Mother reported that, in November of 2007, she brought the children to California from Minnesota because father was physically abusive. Mother did so without informing father and in violation of a Minnesota court order. The Minnesota court ordered mother to return the children to father in June 2008. However, on August 4, 2009, mother and father entered into a stipulation regarding custody which granted mother sole physical custody of the children in California and awarded father visitation every other weekend in California and for one week at the children's holiday break.
The Department concluded the physical abuse referral was unfounded. However, based on interviews with mother and the children, the Department filed a dependency petition which alleged mother and father have a history of violent altercations in the presence of the children, father physically abused the children's adult half sibling by striking the child with a belt buckle, father has a history of alcohol abuse and is a current abuser of alcohol, father sexually abused the children's adult half sibling when she was 10 years old by fondling her breasts and buttocks, and father sexually abused an unrelated child by fondling the child's buttocks.
Contacted by telephone, father denied the allegations.
R.V., who recently had turned 11 years old, told the social worker father frequently was drunk during her most recent summer visit and she did not wish to visit father for New Year's because she knew he would drink. Nine-year-old D.V. stated father no longer drinks and he feels safe around father.
On November 4, 2009, the juvenile court ordered the children released to mother and granted father monitored visitation.
On December 2, 2009, the Department filed an amended petition which added an allegation that mother is a current user of marijuana which renders her incapable of providing regular care.
The jurisdictional report filed December 4, 2009, included supporting information regarding the allegations of domestic abuse, including evidence of physical assaults committed by father against mother in December of 1997 and April of 2005 in which mother suffered physical injuries. With respect to father's alcohol abuse, both children reported father regularly drank to the point of extreme intoxication. Mother indicated father drank excessively almost every day of the week and was hospitalized in January of 2000 for pancreatitis. Records obtained from mother and father's Minnesota family law case indicated father was admitted for alcohol detoxification in January of 2006, October of 2006, October of 2007 and January of 2008. The St. Paul Police Department had been dispatched to father's apartment 15 times since May of 2008, and on several occasions police officers transported the children to a family member or friend, allegedly due to father's drinking. In March of 2009, father was evicted from his apartment building after repeatedly causing disturbances in which father was "terribly drunk. He has taunted people, threatened rape, broke[n] into cars[. He] pounds on doors, kicks doors, invites people to 'settle it like a man on the street' etc."
The dependency investigator obtained two reports alleging neglect of the children by father in Minnesota during visitation. In January of 2009, St. Paul Children Protective Services (CPS) investigated allegations that father was not providing supervision to the children and was drinking. Father denied having a drinking problem and declined services. On August 17, 2009, R.V. called mother in California and mother called the St. Paul Police Department to report father was drunk. Police officers found father to be intoxicated and an investigation by CPS concluded in a finding of "maltreatment against father due to alcohol use."
In April of 2009, the St. Paul Police Department investigated allegations made by an 11-year-old female friend of R.V.'s after a sleepover at father's home in November of 2008. The female reported that father, who was intoxicated, got into the bed where she and R.V. were sleeping in the middle of the night wearing only boxers with his "thing" hanging out and touched her butt. The child did not immediately report the incident because she did not want R.V. to go to foster care. Father was released after a few days in custody due to perceived difficulties in proving the case.
A supplemental report prepared for January 26, 2010, indicated father visited the children on December 4, 5, 19, and 20, 2009. The exchange of the children took place at the Mission Hills station of the Los Angeles Police Department and the visits were monitored by father's friend. On the first visit, R.V. reported father took the children to a restaurant and no problems were reported. With respect to the second visit, mother did not allow the visit to start until 10 a.m. even though she, father and the monitor were present before that time. Mother indicated this upset father who became irate with a police officer. Father sat next to mother and insulted her by whispering, "ridiculous witch." Mother reported R.V. smelled alcohol on father and the children refused to proceed with the visit. However, at the insistence of the monitor, D.V. eventually agreed to visit father. On December 19, 2009, father was upset at the visitation exchange because maternal aunt and maternal grandmother remained at the police station until the monitor arrived. Maternal grandmother indicated R.V. did not wish to follow through with the visit and refused to permit R.V. to speak to the monitor. D.V. visited father and reported no problems. On December 20, 2009, the monitor told maternal grandmother to leave the police station because father's visit was going to take place there. R.V. again stated she did not wish to follow through with the visit. Maternal grandmother indicated R.V. appears "nervous" the day before and the day of visits. Maternal grandmother reported R.V. has said she fears father will be drunk as she has had numerous negative experiences with father being under the influence of alcohol.
Mother advised the social worker that R.V. is "nervous and distracted" the day before and the day of the scheduled visits and has stated she does not want to see father. Also, R.V. fears father will be angry with her for not visiting him in the past. Mother indicated visits with father have been affecting D.V. and he becomes very "distracted" at school and at home before a visit with father.
During home visits on November 23, December 11 and December 15, 2009, R.V. consistently told the social worker she did not wish to visit father because father makes her nervous and yells at her, and she smelled alcohol on father on December 5, 2009. Although D.V. initially was ambivalent about visiting father, he has recently appeared to be receptive to visits.
On January 26, 2010, the juvenile court sustained the count alleging father's alcohol abuse and the count alleging mother's marijuana abuse and dismissed all other counts. The juvenile court ordered father to complete a parent education course and to participate in an alcohol rehabilitation program with weekly random testing. The juvenile court ordered the children to participate in individual counseling to address father's alcohol use and the conflict between mother and father. The juvenile court granted father monitored visitation and continued the matter to July 27, 2010, for review.
Mother appealed the jurisdictional finding. Pursuant to a joint application and stipulation for reversal of the juvenile court's order filed by County Counsel and mother, on June 11, 2010, in case No. B222060, this court reversed the jurisdictional finding as to mother and remanded the matter to the juvenile court for further proceedings.
A social report prepared for the July 2010 review hearing indicated mother successfully had completed her case plan. However, father's compliance with the case plan was "minimal."
Regarding the children's therapy, R.V. repeatedly had missed individual counseling appointments and the service agency had experienced difficulty contacting mother. D.V. recently had been assigned a therapist to address his encopretic and enuretic episodes and to reduce his depression. D.V. had made little progress toward these goals, having been in treatment for only five sessions. Following a change in therapist, D.V. missed five of six sessions and was in danger of losing his slot in therapy.
No visitation had occurred since January as both children expressed a consistent unwillingness to visit father. R.V. repeatedly stated she will not visit father because she is afraid of him. R.V. believed father sexually abused a female relative and feared being similarly victimized. D.V. also refused to visit father, sometimes expressing anger and at other times fear, including reporting being afraid father would take him to Minnesota. The social worker regularly discussed visitation with the children but they have "stated flatly that they will not participate in visits" even though the visits would be monitored by a staff member of the Department. Both children denied they were being coerced to refuse visitation with father. Father has urged the Department simply to insist that the children visit him. The social worker explained the Department could not forcibly take a child to a visit.
The Department reported father had drug tested only twice, on July 6 and 14, 2010, and he was not enrolled in an alcohol abuse program. In March of 2009, Conceptual Counseling Services of St. Paul, Minnesota reported that father had inquired about services but had not enrolled. Father asked the Department to pay the $1,600 fee for the program. The social worker advised father the Department was unable to pay the fee and told father to seek services from the previously provided list of referrals. Father subsequently was assessed by Juel Fairbanks Chemical Dependency Services and was found not to meet the criteria for treatment. The Chemical Health Client Summary submitted by the agency indicated father stated he used alcohol once per week, drinking two beers per sitting, he used no other substances and had no suicidal thoughts.
The Department recommended against termination of jurisdiction, noting the children required therapy to address "somatic symptoms" and their refusal to visit father. R.V. had not yet commenced therapy and D.V.'s progress had been stymied by poor attendance. The Department reported mother and the children have a very strong bond, mother consistently has expressed concern for the children's well being and mother now understands the significance of the children's full participation in court ordered services. The Department recommended mother be ordered to participate in individual counseling to strengthen the family and to serve the best interests of the children, noting it was unlikely their attitude toward father would shift without counseling.
At the review hearing on July 27, 2010, mother and the children requested termination of jurisdiction, asserting any further issues could be handled in family court. The juvenile court indicated that, because jurisdiction as to mother had been set aside and father lived out of state, it intended to terminate jurisdiction with a family law order.
Father's counsel asked that the matter revert to the underlying family law order. The juvenile court noted father had failed to comply with the case plan and, "because the children really cannot be dragged to visit the father," it would order monitored visitation. When the juvenile court indicated it would continue the matter for two days for the appearance of County Counsel, father's counsel requested the matter be set for a contested hearing, stating father's compliance with the case plan had been "slightly un[der]reported," in that father had completed a parenting class. The juvenile court noted the only relevant issue was the safety of the children and, because they were safely placed with mother, the Department was not required to provide father services.
At the continued hearing on July 29, 2010, the juvenile court dismissed the dependency count that had been sustained as to mother, found she now was a non-offending parent and indicated it intended to terminate jurisdiction. Father requested a contested hearing as a matter of right unless the juvenile court restored the pre-existing family law order. The juvenile court responded it was amenable to conducting a contested hearing forthwith, noting father had not complied with the case plan.
Father's counsel indicated he was unprepared to proceed and had not been given notice of the contested hearing. When asked what evidence counsel might present, counsel indicated father had completed drug testing, he had been assessed by an alcohol program in Minnesota, and father would provide "additional evidence." The juvenile court indicated father must have provided this information to counsel and, if the hearing were conducted immediately, father would not have to return from Minnesota.
Father's counsel protested it was improper for the juvenile court to rule contrary to the Department's recommendation without permitting father to present evidence. The juvenile court noted it tentatively had ruled two days previously that it intended to terminate jurisdiction and any evidence father had with respect to father's compliance with the case plan could be presented by father, who had travelled from Minnesota for the hearing. The juvenile court stated, "I don't know what giving you more time is going to do."
Counsel asserted father had the right to an opportunity to gather further information to show he had complied with the case plan and indicated some information might have to be subpoenaed from Minnesota. The juvenile court asked for an offer of proof as to what information counsel might obtain. Counsel responded father had sought assistance from "a couple of different service providers," one of which assessed father and determined he "was not necessarily a candidate for a full-blown alcohol program." Also, counsel intended to argue the Department had failed to provide reasonable services.
The juvenile court pointed out that father was not being provided family reunification services and concluded a continuance for a contested hearing would not be in the children's best interests, noting father had not complied with the case plan and any evidence subpoenaed from Minnesota to show father does not need to comply with the case plan would not be relevant. The juvenile court again indicated its willingness to provide father a "full hearing at this time. The father is here from Minnesota, and he could [testify] as to what he has done and what he has not done. [¶] You have chosen not to do that." Father's counsel again objected, noting father had not been provided adequate notice or a meaningful opportunity to be heard.
The juvenile court denied father's request to set the review hearing for a contest and, over the objection of father and the Department, continued the matter to August 4, 2010, for receipt of a family law order. On that date, the juvenile court terminated jurisdiction, granted mother sole physical custody of the children and ordered father's visitation be supervised because father had failed to make substantial progress in alcohol abuse treatment and had not participated in parenting class or an after-care program for alcohol, such as AA. The juvenile court directed that further modification of the order be sought in the pending family law case.
CONTENTIONS
Father contends the order terminating jurisdiction violated the spirit of dependency proceedings, the failure to grant his request for a continuance to prepare for the contested hearing violated his right to due process, and the order for supervised visitation improperly delegated to mother discretion to determine whether visitation will occur.
County Counsel has filed a letter in this court indicating it will not file a brief in this matter because the Department did not request the order terminating jurisdiction.
DISCUSSION
1. The orders of the juvenile court were within its discretion.
Father claims the juvenile court should have continued jurisdiction in this case to ensure mother abides by the order to enroll the children in therapy. Father argues mother failed to take meaningful steps to ensure the emotional safety of the children by enrolling them in individual counseling. Although the jurisdictional report indicates mother was in the process of enrolling the children in therapy, mother had made no effort in that regard and, as a result, the Department recommended continued jurisdiction with an order directing mother to participate in counseling. Father asserts that, under Welfare and Institutions Code section 361.2, the juvenile court could have granted custody to mother, continued jurisdiction and provided either or both of the parents family reunification services. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131.)
Father's contention lacks merit.
When a parent retains or regains custody of a dependent child, the juvenile court may terminate its jurisdiction and issue custody, visitation or protective orders, referred to as "exit orders." (In re Kenneth S. (2008) 169 Cal.App.4th 1353, 1358.) Exit orders become a part of any proceeding between the child's parents for paternity, nullity, dissolution or legal separation in superior court. (§ 362.4) We review the juvenile court's decision to terminate dependency jurisdiction and to issue an exit order pursuant to section 362.4 for abuse of discretion. (Bridget A. v. Superior Court (2007)148 Cal.App.4th 285, 300-301.)
In this case, the matter was on calendar pursuant to Welfare and Institutions Code section 364, which requires a review hearing within six months of an order placing a child under the supervision of the juvenile court where the child is not removed from the physical custody of his or her parent or guardian. (Welf. & Inst. Code, § 364, subd. (a).) The purpose of a hearing held pursuant to section 364 is to determine whether continued jurisdiction is necessary. Section 364, subdivision (c) provides: "After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." (§ 364, subd. (c), italics added.)
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
Thus, section 364 directs the juvenile court to terminate jurisdiction unless the Department establishes neglect of the children is likely to continue. Here, the juvenile court repeatedly stated the order placing the children in mother's physical custody ensured their safety. Because that finding is supported by the evidence, the juvenile court was statutorily obliged to terminate jurisdiction.
Additionally, contrary to father's assertion, R.V. and D.V. were enrolled in therapy. Although the children had not yet made significant progress, the Department reported mother now understood the importance of their participation. Thus, the juvenile court reasonably could conclude mother would ensure the attendance of the children at future counseling sessions. Further, father could address any failure by mother to comply with the counseling provisions of the exit order in family court.
Section 361.2, cited by father, applies only when a juvenile court orders removal of a child from a custodial parent and places the child with a parent who previously did not have custody. Here, mother at all relevant times had sole physical custody of the children. In any event, even had section 361.2 been applicable, nothing in that statute would have prevented the juvenile court from terminating jurisdiction in this case. (See § 361.2, subd. (b)(1).)
In sum, father's attack on the juvenile court's termination of jurisdiction fails.
2. The juvenile court committed no violation of father's right to due process.
Father contends the juvenile court's failure to grant his request for a continuance to prepare for the contested hearing violated his right to " ' "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." [Citation.]' [Citation.]" (In re Anna M. (1997) 54 Cal.App.4th 463, 468; In re Joshua M. (1998) 66 Cal.App.4th 458, 471.) Father claims the juvenile court allowed him no time to prepare, much less the 18 minutes found to be insufficient in In re Andrew A. (2010) 183 Cal.App.4th 1518, 1528. Father argues a contested hearing may not be denied based on an assertedly inadequate offer of proof. (In re James Q. (2000) 81 Cal.App.4th 255, 258.) He concludes the order terminating jurisdiction must be reversed.
Father's arguments in this regard are not persuasive. As previously noted, the purpose of a review hearing pursuant to section 364 is to determine whether family reunification services should be extended or jurisdiction should be terminated. Section 364, subdivision (c) directs the juvenile court to terminate jurisdiction unless the Department establishes neglect of the children is likely to continue. In advance of a review hearing pursuant to section 364, the social worker is required to file a supplemental report describing the services offered to the family and the progress made by the family in eliminating the conditions requiring court supervision at least 10 calendar days prior to the hearing. (§ 364, subd. (b).) Father concedes he received timely notice of the Department's recommendation and thus also must concede he had notice of the issue to be determined at the hearing. Given the posture of the case, father cannot realistically claim he lacked notice the juvenile court might terminate jurisdiction at the July 24, 2010 hearing.
Further, after stating its intention not to follow the Department's recommendation, the juvenile court continued the matter for two days for the presence of County Counsel. Thus, father and his counsel had 48 hours to develop arguments father might present to avoid termination of jurisdiction. However, father offered no evidence on the issue and declined to testify even though the juvenile court repeatedly offered to consider father's testimony.
These facts distinguish the present case from Andrew A., the case cited by father. In Andrew A., the juvenile court reconsidered a jurisdictional finding without prior notice the issue would be addressed and notwithstanding mother's no contest plea, which barred her request for reconsideration. Unlike the situation presented in Andrew A., father specifically was apprised that termination of jurisdiction was under consideration, the two-day continuance of the hearing granted father an opportunity to gather additional evidence, and there was no procedural bar to termination of jurisdiction.
Based on the record presented, we conclude the juvenile court provided father adequate notice and a meaningful opportunity to be heard, which father declined.
Moreover, even assuming error for the sake of discussion, there is no reason to believe that, had father been granted a continuance, the outcome of the hearing would have been different. (See In re James F. (2008) 42 Cal.4th 901, 918; M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1182) We therefore conclude any conceivable error was harmless.
3. The visitation order must be reversed and the matter remanded to permit the juvenile court to specify the terms of father's supervised visits.
Father contends the juvenile court's order for supervised visitation, which did not specify the frequency or duration of father's visits, was tantamount to an improper delegation of the juvenile court's authority to mother and/or the children to decide whether visitation would take place. (In re T.H. (2010) 190 Cal.App.4th 1119, 1123-1124; In re S.H. (2003) 111 Cal.App.4th 310, 319-320; In re Julie M. (1999) 69 Cal.App.4th 41, 49.) Father claims 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 [the parent's] right to visitation is illusory . . . ." (In re T.H., supra, at p. 1124.)
It appears this aspect of father's appeal is well taken.
It is settled that the power to determine the right and extent to visitation by a noncustodial parent in a dependency case resides with the juvenile court and may not be delegated to non-judicial officials or private parties. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 [rejecting order which delegated to legal guardian discretion to decide frequency and duration of parent's visits]; In re Julie M., supra, 69 Cal.App.4th at p. 51 [delegation to child]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 [same]; In re S.H., supra, 111 Cal.App.4th at pp. 317-320 [same]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1478 [delegation to therapist].) The rule of non-delegation applies to exit orders issued when dependency jurisdiction is terminated. (See In re Chantal S. (1996) 13 Cal.4th 196, 213-214.)
Here, the visitation order granted father supervised visitation but failed to specify the frequency of the visits or the terms on which the visits would occur. Given the contentious relationship between mother and father, the children's stated intention not to participate in visitation with father, and father's out of state residence, the juvenile court's failure to specify these matters essentially granted mother and/or the children "veto power" over the visits. (In re T.H., supra, 190 Cal.App.4th at p. 1124.) Although the order did not affirmatively condone refusal to participate in visitation, the lack of specificity rendered the order, at best, difficult for father to enforce in family court and, at worst, illusory.
We therefore reverse the order for monitored visitation and remand the matter to the juvenile court to permit it to provide a framework for the visitation which father will be able to enforce in family court. We acknowledge that, because father resides out of state and presumably does not travel to Southern California on a regular basis, a standard visitation order might be inappropriate. However, the order might require father to give 20 days' notice of his intent to exercise his right to monitored visitation, and 5 days for mother to object to the requested date. Such an order will permit the family court to evaluate a claim by either mother or father that the other has been unreasonable in scheduling or resisting visitation.
The foregoing suggestion is in no way binding on the juvenile court which shall exercise its independent jurisdiction based on the totality of the circumstances.
DISPOSITION
The order terminating dependency jurisdiction is affirmed. The visitation order is reversed and the case is remanded for further proceedings consistent with the opinions expressed herein.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
CROSKEY, J.
KITCHING, J.