Opinion
B232331
10-27-2011
In re A.P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANTHONY P., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK85281)
APPEAL from an order of the Superior Court of Los Angeles County. Amy M. Pellman, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Anthony P. (Father) appeals from the February 17, 2011 dispositional order of the juvenile court requiring Father's visits with A.P. to be supervised by a professional monitor. Father contends that the court abused its discretion by ordering monitored visits based on the unreliable testimony of S.W. (Mother) without affording him an evidentiary hearing. The Los Angeles County Department of Children and Family Services (DCFS) states it was aligned with Father's position below and takes no position on this appeal. Mother is not a party to this appeal. We conclude that the court did not abuse its discretion in ordering monitored visits because the evidence showed that Father had minimal contact with A.P. from the time she was born, and that A.P. was uncomfortable with the two visits Father made after DCFS became involved. Further, Father had waived his appearance at the dispositional hearing, his counsel did not request a continuance, and Father does not present on appeal any facts or evidence that he claims his counsel failed to present at the dispositional hearing.
BACKGROUND
On November 23, 2010, DCFS filed a petition on behalf of A.P., born in 2003, and her two half siblings pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to protect) against Mother and A.P.'s stepfather George C. (Stepfather), and under section 300, subdivision (g) (no provision for support) against Father. The petition alleged that Mother and Stepfather had a history of illicit drug use and that Father had failed to provide for A.P. and his whereabouts were unknown.
Statutory references are to the Welfare and Institutions Code.
DCFS subsequently contacted Father, who informed DCFS that Mother had kept A.P. away from him and had not allowed him to maintain regular contact with her. DCFS recommended that the allegations against Father be dismissed from the petition and that "he be acknowledged as a nonoffending father under the petition." At the detention hearing on November 23, 2010, the juvenile court found Stepfather to be the presumed father of A.P.'s half siblings, released the minors to Mother and Stepfather, found Father to be the presumed father of A.P., dismissed the allegations of the petition against Father, ordered unmonitored visitation for Father, and at Father's request, waived Father's appearance at the pretrial resolution conference. On December 20, 2010, at Father's counsel's request, Father's appearance at the jurisdictional/dispositional hearing was waived.
DCFS reported that Mother told DCFS that before DCFS's involvement, Father's mother visited A.P. about twice a month. Mother stated to DCFS that Father had little or no contact with A.P. from the time she was born. She reported that Father visited A.P. twice after DCFS became involved, but A.P. told her afterward that she did not want to visit Father. She also stated that A.P. views Stepfather, who had raised her from the time she was three months old, as her father. Stepfather stated that he had cared for A.P. from the time she was three months old and the first time he ever saw Father was at the detention hearing.
On February 17, 2011, before a different juvenile court judge, Mother and Stepfather pleaded no contest to an amended section 300 petition. The section 300 petition was sustained and dispositional orders were made placing the minors with Mother and Stepfather, with family maintenance services ordered for the family. Father's counsel, who noted that Father's appearance had been waived for the hearing, requested that the order for Father's unmonitored visitation remain in place. Mother then stated, "No, he has nothing to do with her. She's had unmonitored visits with him. She came back and said, 'I don't want to see him anymore. He's asking me too many questions.' She is uncomfortable with him. She hasn't known him for seven years." Mother informed the court that she did not have a family law order with respect to Father. The court then ordered Father's visits to be monitored by a professional monitor. Father's counsel objected and stated that Father previously had received unmonitored visitation. The court stated, "Well, he's not here." Father's counsel explained that Father claimed Mother had kept him away from A.P. and refused to allow him to maintain regular contact, that Father's appearance had been waived because he was nonoffending, and that he had unmonitored visitation from the time the court ordered it on November 23, 2010. Mother then stated that the last time Father saw A.P. was the next day after the court hearing at which he appeared, that he had not been in A.P.'s life for seven years, and that A.P. had not known "she had another daddy until he came to court." The court ordered professionally monitored visits for Father.
Father filed an appeal from the juvenile court's order of monitored visits.
DISCUSSION
Father contends that the juvenile court abused its discretion by ordering monitored visits based on the unreliable testimony of Mother and without affording him an evidentiary hearing. We conclude that the court did not abuse its discretion in ordering monitored visits for Father.
"We review an order setting visitation terms for abuse of discretion. [Citations.] We will not disturb the order unless the trial court made an arbitrary, capricious, or patently absurd determination. [Citation.] [¶] During reunification efforts, visitation generally must be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) At the same time, visitation orders must provide for 'flexibility in response to the changing needs of the child and to dynamic family circumstances.' [Citation.] 'In addition, the parents' interest in the care, custody and companionship of their children is not to be maintained at the child's expense; the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation.' [Citation.]" (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)
Father argues that the juvenile court abused its discretion in ordering monitored visits because it based its order solely on Mother's testimony, which lacked credibility. But the court was entitled to give credence to Mother's testimony because issues of fact and credibility are questions for the trier of fact. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) Father also contends that he had a due process right to a hearing on a change in visitation order and that the court was obligated to continue the hearing to allow Father to present evidence. But the authorities he cites do not assist him. In re T.R. (2005) 132 Cal.App.4th 1202 merely states the broad proposition that presumed father status, which is a rebuttable presumption, entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan. (In re T.R., at p. 1209.) In re Julie M. (1999) 69 Cal.App.4th 41, cited by Father, states, "[A] parent's liberty interest in the care, custody and companionship of children cannot be maintained at the expense of their well-being. [Citation.] While visitation is a key element of reunification, the court must focus on the best interests of the children 'and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm specified in section 300.' [Citation.] This includes the 'possibility of adverse psychological consequences of an unwanted visit between [parent] and child.' [Citation.]" (In re Julie M., at p. 50.)
The record shows that the court focused on the best interests of A.P. in ordering monitored visits in fashioning its order. Although Father argues that the court "lacked information concerning the impact on the well-being of A.P. arising from the visitations with [Father] in keeping with the directive of section 362.1, subdivision (a)(1)(A)," the evidence shows that Father had not been part of A.P.'s life for the past seven years, that he made her uncomfortable during his two visits with her after DCFS became involved, and that she did not want him to visit her. And the record shows that Father requested that his appearance be waived at the dispositional hearing. Thus, he now cannot complain that he was unable to testify or present evidence. Further, the record shows that Father's counsel argued at the dispositional hearing that Father claimed Mother had kept A.P. away from him and had not allowed him to maintain regular contact with A.P. On appeal, he does not argue that there are any other facts or claims that should have been presented to the court below. What is more, Father's counsel did not request a continuance from the court at the time of the dispositional hearing.
Accordingly, we conclude that the juvenile court did not abuse its discretion in ordering monitored visitation with respect to Father.
DISPOSITION
The February 17, 2011 dispositional order of the juvenile court requiring Father's visits with A.P. to be supervised by a professional monitor is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
CHANEY, J.
JOHNSON, J.