Opinion
B298943
03-26-2020
In re Z.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ROBERT E., Defendant and Appellant.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates and Arezoo Pichvai 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP06150) APPEAL from the jurisdictional and dispositional orders of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Commissioner. Affirmed in part and reversed in part. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.
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Appellant Robert E. (father) appeals from the juvenile court's jurisdictional findings and dispositional order concerning his son Z.A. At the time of the proceedings from which father appeals, father lived in Georgia and had not seen Z.A. or Z.A.'s mother K.A. (mother) for many years.
The juvenile court sustained jurisdictional findings against father based on an 11-year-old domestic violence incident between father and mother, and evidence that father had twice been arrested more recently in Georgia for domestic violence. Father challenges that finding and the dispositional order directing him to complete a domestic violence program. Father also challenges the order granting him visitation with Z.A., which father contends improperly delegates the juvenile court's authority over visitation to Z.A.
Although mother does not challenge the jurisdictional findings against her, and thus we affirm the juvenile court's assertion of jurisdiction, we exercise our discretion to consider father's challenge to the jurisdictional findings as to him. We conclude that the evidence presented of father's history of domestic violence is insufficient to show a risk to Z.A., who lived thousands of miles away from father, and the juvenile court should not have asserted jurisdiction on that basis. The juvenile court was within its authority, however, to order father to complete a domestic violence program, even if father was nonoffending.
We further conclude the portion of the dispositional order regarding father's visitation improperly delegated the juvenile court's authority by not specifying the frequency or minimum number of visits to which father was entitled, instead stating that respondent Los Angeles County Department of Children and Family Services (DCFS) should take Z.A.'s wishes into consideration when determining the frequency and duration of visits.
Accordingly, we reverse the jurisdictional findings as to father and direct the juvenile court to revise the portion of the dispositional order regarding visitation. We otherwise affirm.
BACKGROUND
In September 2018, DCFS filed a petition under Welfare and Institutions Code section 300 seeking to detain 10-year-old Z.A. from mother. The petition alleged that mother physically abused Z.A., and had mental and emotional problems and a history of substance abuse that placed Z.A. at risk of harm. The allegations against mother are not at issue in this appeal, to which mother is not a party.
Undesignated statutory citations are to the Welfare and Institutions Code.
The juvenile court ordered Z.A. detained, and DCFS placed him with his adult half sister.
DCFS located father in Georgia. The record indicates father had not seen mother or Z.A. in years, although the specific duration is unclear. Father said he had moved to Georgia shortly after Z.A. was born. Mother said she had not seen father since he had physically assaulted her just before Z.A. was born. Z.A. reported last seeing father when Z.A. was three years old.
Father said that in the past he had "regular telephone contact" with mother and Z.A., and at one point, with mother's agreement, purchased an airplane ticket for Z.A. to visit him in Georgia, but Z.A. never came. Father had last spoken with Z.A. by telephone in approximately 2016.
The juvenile court appointed counsel for father. The court ruled that father was Z.A.'s biological father, but denied his request for presumed father status.
In April 2019 DCFS filed an amended section 300 petition adding allegations against father. The amended petition added counts a-2 and b-4, which had identical allegations that father "has unresolved issues of domestic violence. On 2/18/2008, the father struck the mother's face with a closed fist repeatedly, slammed her against his car and choked her and was subsequently arrested on 02/19/2008 for [Penal Code section 273.5, subdivision (a)] Inflict Corporal Injury Spouse/Cohabitant. The father sexually assaulted the mother. Furthermore, father has continued a pattern of violence toward his female companions which ha[s] resulted in arrests. In 2013, father was arrested as a result of a violent altercation with a female companion that included a stabbing. On 05/16/2016, father was arrested for Simple Assault-Family Violence. On 09/05/2018, father was arrested for Criminal Trespass-Family Violence and Simple Assault. Such violent conduct on the part of the father endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger."
At the jurisdiction hearing, DCFS submitted reports containing the following evidence:
We summarize only the evidence that is relevant to the allegations against father.
Mother reported that father had physically assaulted her twice while she was pregnant with Z.A., had stalked her, and had tried to choke her. Mother said she had filed reports with the police about father. Once he sexually assaulted her by picking her up, lifting her skirt, and penetrating her with his penis for a minute or two.
Maternal grandmother said mother's two adult daughters, Z.A.'s half siblings, had said father was "violent and scary." Maternal grandmother believed there had been an incident in which father physically assaulted mother and she was hospitalized. Maternal grandmother said mother now claimed father had raped her and that is how Z.A. was conceived. Maternal grandmother said that was possible, but that "rape and sexual assault are a recurring theme for mother and . . . she has accused doctors of rape/sexual assault."
Father said that mother "developed a habit of making false allegations against him." He was in jail when Z.A. was born because mother had falsely accused him of domestic violence. He said the charges were dismissed.
A dependency investigator asked father about his arrests for domestic violence in Georgia. Father said he was arrested in 2013 following an argument with his girlfriend in which she stabbed him. He begged the police not to arrest her and they arrested him instead. He also was arrested in September 2018 when, following an argument with a different girlfriend, she tried to run him over with her car. Father could not explain why he was arrested.
DCFS provided one page from a 2008 incident report from the Inglewood Police Department. The name of the alleged perpetrator, identified as mother's boyfriend, is redacted. According to the report, mother stated that, while driving with her boyfriend in his car, the boyfriend became upset and accused her of cheating on him. He "began to drive and speed recklessly" and "punched her with a closed fist approximately seven times in her face." After pulling into a parking lot, the boyfriend pulled mother out of the vehicle, "grabbed her by the neck," and "slammed her against the vehicle." The boyfriend "began choking her and yelled, 'Don't play with me or I'm going to kill you.' " Mother, "[i]n fear for her life," said she was sorry, and the boyfriend released her throat and pushed her away. Mother reported the boyfriend had threatened to hurt her in the past. She said she was eight months pregnant with his child.
The incident report stated that mother "had bruising around both of her eyes," "a scratch on her right shoulder," and "complained of pain to her back, shoulder, neck, face and both legs." She refused medical treatment.
The incident report stated that police went to mother's and the boyfriend's apartment and knocked on the door. The boyfriend jumped off the balcony towards the rear of the apartment complex, but two officers were waiting and took him into custody. He was arrested for "Willful Infliction of corporal injury to a spouse" under Penal Code section 273.5, subdivision (a). The boyfriend told a police officer " 'I'm sorry[,] Officer, I only punched her once.' "
After receiving this evidence and hearing argument, the juvenile court sustained count b-4 against father, and sustained amended counts against mother alleging inappropriate physical discipline and mental and emotional problems. The juvenile court dismissed the remaining counts.
The juvenile court asserted jurisdiction over Z.A., placed him in "home of mother," granted family maintenance services to Z.A. and mother, and granted enhancement services to father. Father was ordered to complete a 26-week domestic violence program. We discuss the juvenile court's visitation orders in the relevant portion of our Discussion section, post.
Father timely appealed.
DISCUSSION
A. We exercise our discretion to consider father's challenge to the jurisdictional findings against him
"When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Here, because mother has not challenged the jurisdictional findings against her, we "need not consider whether any or all or the other alleged statutory grounds for jurisdiction are supported by the evidence," including those asserted against father. (Ibid.)
We have the discretion, however, to consider father's challenge to the jurisdictional findings against him. (In re Drake M., (2012) 211 Cal.App.4th 754, 762 (Drake M.).) We generally do so when the challenged finding "(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction.' " (Id. at pp. 762-763.)
Here, reversal of the jurisdictional findings against father would render him nonoffending for purposes of these proceedings, which "may have far-reaching implications with respect to future dependency proceedings in this case and father's parental rights." (Drake M., supra, 211 Cal.App.4th at p. 763.) We therefore exercise our discretion to address the merits of father's appeal. (See ibid.)
B. The jurisdictional findings against father are not supported by substantial evidence
Father contends the jurisdictional findings against him are not supported by substantial evidence. We agree.
"When an appellate court reviews the jurisdictional and dispositional findings of the juvenile court, it looks to see if substantial evidence, whether contradicted or uncontradicted, supports the findings. [Citations.] The appellate court must review the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. [Citation.] Substantial evidence 'means evidence that is "reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." ' " (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
The juvenile court asserted jurisdiction under section 300, subdivision (b)(1), which "requires proof that the child suffered or is at substantial risk of suffering 'serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.' " (In re Daisy H. (2011) 192 Cal.App.4th 713, 717 (Daisy H.)) We have held that "[p]hysical violence between a child's parents may support the exercise of jurisdiction under subdivision (b)," but "only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm." (Ibid.)
In Daisy H. we reversed jurisdictional findings based on domestic violence when the incidents occurred at least two years before DCFS filed its section 300 petition, there was no evidence the children had witnessed or been harmed by the violence, and there was no evidence of continuing violence between the parents who since had separated. (Daisy H., supra, 192 Cal.App.4th at p. 717.) We concluded this "evidence was insufficient to support a finding that past or present domestic violence between the parents placed the children at a current substantial risk of physical harm." (Ibid.)
Similarly, in In re Jesus M. (2015) 235 Cal.App.4th 104 (Jesus M.), our colleagues in Division Four reversed jurisdictional findings based on domestic violence when "the parents had long been separated, the two incidents Mother could recall had occurred more than three years earlier, and there was no evidence of current violent behavior." (Id. at p. 113.)
As in Daisy H. and Jesus M., the last incident of domestic violence between mother and father occurred in 2008, 11 years before DCFS filed its amended section 300 petition against father. Shortly thereafter father moved to Georgia, and there was no evidence he had seen mother or Z.A. in years. Thus, there was no evidence "that the violence is ongoing or likely to continue," or that it "placed [Z.A.] at risk of physical harm," given that father was thousands of miles away from mother and Z.A. (Daisy H., supra, 192 Cal.App.4th at p. 717.)
DCFS argues Daisy H. and Jesus M. are distinguishable because here there was evidence father continued to engage in domestic violence with other women, as indicated by his more recent arrests. We reject this argument. The record is notably bereft of information concerning those arrests, including any police reports or criminal background information regarding father. Although the amended section 300 petition specified the offenses for which father allegedly was arrested, the record does not reveal the source of that information.
The only information in the record came from father himself, who admitted to arrests in 2013 and 2018 (but not 2016, as alleged in the section 300 petition), and father insisted in each case it was his girlfriend who initiated the violence, not he. Although the juvenile court was free not to credit father's version of events, there was no contrary evidence suggesting what actually might have happened. Nor is there any indication how these incidents resolved, for example, whether they resulted in charges against father.
Thus, under Daisy H. and Jesus M., the evidence against father was insufficient to support jurisdiction under section 300, subdivision (b)(1).
C. The juvenile court did not err in ordering father to complete a domestic violence program
Father argues that rather than sustain unsupported allegations against him, the juvenile court should have ordered services for him under section 362, subdivisions (a) and (d). Section 362, subdivision (a) gives the juvenile court authority to "make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." Section 362, subdivision (d) provides that "[t]he juvenile court may direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section," including "a direction to participate in a counseling or education program, including, but not limited to, a parent education and parenting program."
Father argues the juvenile court should have ordered parenting classes and conjoint counseling for father so he and Z.A. could "re-connect after so many years." Father argues "these services would have been much more beneficial than ordering Father to participate in a domestic violence program."
To the extent father suggests the juvenile court erred by not ordering parenting courses or counseling, he cites no authority to support that contention. To the extent father argues that our reversal of the jurisdictional findings similarly requires reversal of the dispositional order requiring father to complete a domestic violence program, we disagree. As we have held, under section 362, subdivision (a), so long as the juvenile court has a basis to assert jurisdiction over a child, it has the authority to order "a nonoffending parent to participate in services." (In re D.L. (2018) 22 Cal.App.5th 1142, 1148 (D.L.).)
Moreover, " '[t]he problem that the juvenile court seeks to address [through the dispositional order] need not be described in the sustained section 300 petition.' " (D.L., supra, 22 Cal.App.5th at p. 1148.) Thus, although we conclude the evidence of father's history of domestic violence was insufficient to support jurisdiction under section 300, it does not follow that the juvenile court could not order father to complete a domestic violence program given father's past of acts of violence against mother.
Father cites cases in which courts reversed dispositional orders after reversing jurisdictional findings, but in those cases the courts held the juvenile court had no jurisdiction at all. (See Jesus M., supra, 235 Cal.App.4th at p. 114 ["In the absence of jurisdiction, the court had no authority to issue a dispositional order"]; In re R.M. (2009) 175 Cal.App.4th 986, 991 ["In light of our determination that the jurisdictional order must be reversed, the dispositional order . . . must be reversed as well"].) They are not applicable here, where the juvenile court properly could assert jurisdiction based on the unchallenged findings against mother.
D. The juvenile court improperly delegated its authority over visitation
Father challenges the juvenile court's visitation order. We begin with a summary of the relevant proceedings.
1. Proceedings below
On February 28, 2019, the juvenile court ordered that "father and minor begin having monitored phone contact in a therapeutic setting."
On April 30, 2019, the court directed DCFS to "work with minor's individual counselor to foster a relationship with father when appropriate. [¶] [DCFS] is to set up monitored phone contact between the minor and father."
At the jurisdiction and disposition hearing, father's counsel asked that father and Z.A. have two phone calls a week, and a minimum of six hours of visitation a week if father came to Los Angeles County. The juvenile court responded, "I'm going to leave it the way that it's been put on the case plan order. Monitored by phone by adult sibling, and at D.C.F.S. office if he's in person. And I'm also ordering that the minor's wishes . . . be considered regarding duration and frequency of visits."
In the written dispositional order, the juvenile court "order[ed] monitored visitation for father." The order stated that any in-person visits would take place in the DCFS office with a monitor approved by DCFS, and phone visits would be monitored by Z.A.'s adult sibling. The order stated, "Minor's wishes to be considered regarding duration and frequency of the visits."
2. Analysis
We agree with father that the visitation order improperly delegated the juvenile court's authority.
"The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties." (In re T.H. (2010) 190 Cal.App.4th 1119, 1123.) "A visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner." (Ibid.) However, "the power to decide whether any visitation occurs belongs to the court alone." (In re S.H. (2003) 111 Cal.App.4th 310, 317 (S.H.).) "When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine." (Id. at pp. 317-318, fn. omitted.)
Courts have held that visitation orders are invalid if, despite granting a parent a right to visitation, the orders delegate the authority to decide whether visits will occur to the child welfare agency or the children themselves. S.H. concerned an order granting monitored visitation but providing that " 'if the children refuse a visit, then they shall not be forced to have a visit.' " (S.H., supra, 111 Cal.App.4th at pp. 316.) The Court of Appeal held the order was invalid because it "effectively g[ave] the children the power to veto all visits." (Id. at p. 319.) The court stated, "By failing to mandate any minimum number of monitored visits per month or even to order that some visitation must occur each month, the [juvenile] 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." (Ibid.)
Similarly, in In re Kyle E. (2010) 185 Cal.App.4th 1130 (Kyle E.) the appellate court held invalid an order stating, " 'The father shall have supervised visitation with [the minor] as frequent as is consistent with the well-being of [the minor]. [The Department] shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, and by whom they are supervised. [The Department] may consider [the minor's] desires in its administration of the visits, but [the minor] shall not be given the option to consent to, or refuse, future visits.' " (Id. at pp. 1135-1136, alterations in original.) The appellate court concluded that by "fail[ing] to set a minimum number of visits or provide that [the parent] could visit the minor 'regularly,' " the juvenile court improperly delegated to the child welfare agency "authority . . . regarding whether visitation would occur at all." (Id. at p. 1136.)
Like the invalid orders in S.H. and Kyle E., the visitation order here does not "mandate any minimum number of monitored visits per month or even . . . order that some visitation must occur each month." (S.H., supra, 111 Cal.App.4th at p. 319.) Thus, nothing in the order prevents DCFS from denying all visitation should Z.A. so wish, which renders father's right to visitation "illusory." (S.H., supra, 111 Cal.App.4th at p. 319.)
DCFS notes that, during the hearing on jurisdiction and disposition, the juvenile court stated, "I'm going to have the way the father has been visiting with [Z.A.]—by phone, monitored by the adult sibling—to continue." DCFS argues the juvenile court thereby granted visits with "the same frequency and duration [father] currently had." As DCFS concedes, the record does not disclose anything about past telephonic visits between father and Z.A., including their frequency or duration. Thus, at least on the evidence before us, there is nothing DCFS could look to for guidance as to how frequently the telephone calls should be conducted in the future. The juvenile court's oral comment does not correct the deficiency in the written order.
DCFS argues the order was proper because it did not give Z.A. sole discretion whether visits occurred, but merely required that his wishes be taken into consideration. In Kyle E., however, the order similarly directed the child welfare agency to consider the child's wishes, and expressly stated that the child could not refuse visitation, yet the appellate court held the order invalid for its lack of direction as to how frequently visits should occur. (Kyle E., supra, 185 Cal.App.4th at pp. 1135-1136.) In other words, whether the juvenile court delegates discretion to the child or to the child welfare agency, such delegation is improper if the juvenile court does not offer some guidance limiting that discretion and ensuring visitation will occur.
DCFS argues father's counsel invited error when, at the hearing on jurisdiction and disposition, he stated "Obviously, . . . if the child doesn't want to visit, we're not going to be forcing the child to visit," thus conceding that Z.A. should have discretion to decide whether visits would occur. Assuming arguendo the doctrine of invited error applies to errors implicating the constitutional separation of powers, we reject DCFS's interpretation of counsel's comment. Immediately after making the comment, father's counsel asked "for a minimum of six hours per week when the father is in Los Angeles County" and "phone calls two times a week" when father was in Georgia. Clearly father's counsel was not suggesting that Z.A. determine the frequency of visitation.
DCFS argues Kyle E. is distinguishable because the father in that case was nonoffending. Nothing in Kyle E. suggests its holding turned on father's status as nonoffending. Regardless, we have held here that father was nonoffending as well.
We recognize the importance of the juvenile court, in ordering visitation, to "provid[e] for flexibility in response to the changing needs of the child and to dynamic family circumstances." (S.H., supra, 111 Cal.App.4th at p. 317.) Thus, it is proper for the juvenile court to give DCFS the "responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur," and to consider the child's wishes as well. (Ibid.) As discussed, the sole deficiency in the visitation order here is that, by providing no guidance as to how frequently visitation should occur, it effectively vests full discretion in DCFS and Z.A. as to whether visits should occur at all.
DISPOSITION
The jurisdictional findings sustaining count b-4 are reversed. The juvenile court is instructed to revise the dispositional order to include the frequency and/or minimum amount of father's visits with Z.A. The jurisdictional findings and dispositional order otherwise are affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.