Opinion
G062429
10-27-2023
In re S.B. et al., Persons Coming Under the Juvenile Court Law. v. B.B., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, and Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Super. Ct. Nos. 21DP1299, 21DP1300 Lindsey E. Martinez, Judge. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, and Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
B.B. (Father) appeals from the court's order made pursuant to Welfare and Institutions Code section 364, subdivision (c) (section 364(c)) that terminated dependency court jurisdiction over his two children. He does not challenge the court's findings under section 364(c) or the exit orders, which granted full legal and physical custody to the children's mother (Mother). He argues instead that the Orange County Social Services Agency (SSA) violated the separation of powers doctrine by failing to enforce the juvenile court's visitation order, which was made as part of his enhancement services, by allowing the Children to decide whether to attend visits.
All statutory references are to the Welfare and Institutions Code.
SSA argues Father's appeal is moot because we cannot provide Father effective relief. We conclude Father has not met his appellate burden of showing the court's order terminating jurisdiction was erroneous and, therefore, affirm.
FACTS
Due to the narrow ground on which we are affirming, we present a compressed statement of facts.
The older child was born in 2007 and the younger child in 2011. Mother and Father divorced in 2017. Father was granted visitation of three weekends per month, alternating holidays, and alternating weeks during the summer.
In November 2021, the children were detained because the older child had found two baggies containing a white powder and several orange pills in the room that he shared with the younger child and Father. The older child gave the baggies to Mother, who reported the matter to the police. The police department investigated and determined the powder to be cocaine and the pills to be ecstasy.
In November 2021, SSA filed dependency petitions under section 300, subdivisions (b)(1) and (c) which alleged failure to protect, inability to provide regular care, and severe emotional general neglect. The children were not detained. The dependency petitions alleged the following: Father had been verbally aggressive with the children, had unresolved anger management issues, and had inflicted corporal punishment on them. Mother and Father have a history of domestic violence and the older child has seen Father hit Mother. The older child did not have a good relationship with Father, Father yelled at the younger child, and both children feared Father. The older child was diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, anxiety, and depression, had issues controlling his anger, and has had thoughts of self-harm. Father's court-ordered therapist concluded that the older child needs medication, but Father would not approve any medication because he wanted to get a second opinion. Mother and Father cannot agree on treatment for the older child.
At the detention hearing in November 2021, the court ordered the children be removed from Father's home and that they remain in Mother's care. Visitation with Father was to occur with input from the children and their therapist.
At the jurisdiction hearing in May 2022, the court found to be true by a preponderance of the evidence, the allegations of the dependency petition, as amended by interlineation, and declared the children to be dependent children. The court ordered custody be taken from Father and remained vested with Mother. Father was granted a minimum of six hours per week of monitored visitation, "with input from the children and the children's therapist." Father was offered enhancement services including counseling, parenting classes, anger management and substance abuse testing. Father later was given eight hours per week of visitation (four hours supervised and four hours unsupervised).
Father participated in enhancement services and therapy, and, as of January 2023, had completed 39 sessions of individual counseling. His therapist reported that Father had "worked on communication, boundaries, accountability, active listening, and emotional reasoning." Although Father initially had some positive drug tests, he tested for 60 days with no positive results.
Difficulties arose over visitation. The older child was adamant in wanting no contact with Father and was concerned the court was going to force him to visit Father. He stated that having Father in his life "'was like a bullet in [his] chest'" and he did not "'want to take another bullet.'" In late June 2022, the younger child began unsupervised visitation with Father. Less than two weeks later, he stated he was afraid that Father was "gonna do something bad during [a] visit to [him] or someone else." He described Father as "mad all the time." Although he initially felt "safe" at visits, he said he did not trust Father and, after less than one month of unsupervised visits, asked for a "'break' from visits."
Social workers encouraged the older child to visit Father but also told him he did not have to visit if he did not want to and they would not force him to visit. The first social worker handling the case told the younger child he had to visit Father; the second social worker told him it was his choice whether or not to visit.
A contested six-month review hearing pursuant to section 364(c) was conducted over several days in February and March of 2023. At the conclusion of the hearing, the court ordered that dependency proceedings be terminated with exit orders. The court found "conditions no longer exist to require this court's jurisdiction. The [children] remain safe in the mother's care." As exit orders, the court awarded Mother legal and physical custody of the children and granted Father a minimum of eight hours monthly monitored visitation with each child. The court ordered: "[T]his visitation is to occur with the Children's input, including as to frequency, duration, location, and presence of any other third parties. A neutral monitor to be selected by the mother and paid for by the father, and a monitor can be lifted upon agreement by mother and the children."
DISCUSSION
Because the children were not removed from Mother's custody, section 364 governed the six-month review hearing. (§ 364, subd. (a).) Section 364(c) reads: "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 [s]ection 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary."
"At the section 364 review hearing, the juvenile court is not concerned with reunification, but in determining whether the dependency should be terminated or supervision is necessary. [Citations.] The juvenile court makes this determination based on the totality of the evidence before it, including reports of the social worker who is required to make a recommendation concerning the necessity of continued supervision." (In re N.O. (2019) 31 Cal.App.5th 899, 922-923.)
Although Father appealed from the order terminating court jurisdiction, he does not challenge the court's finding that conditions no longer exist which would justify continued jurisdiction. Nor does Father challenge the exit orders. He argues only that SSA failed to enforce the court's visitation order by allowing the children to decide whether to attend visits. In the standard of review section of Father's opening brief, he recites the standard of review applicable to a finding that reunification services were reasonable. However, at a hearing under section 364(c) the only issue presented is whether "conditions still exist which would justify initial assumption of jurisdiction under [s]ection 300, or that those conditions are likely to exist if supervision is withdrawn."
Father argues the dependency case should remain open to allow the family members to repair their relationship with each other through visitation and conjoint therapy. While that is certainly a desirable goal, during a section 364(c) hearing the court's concern is not reunification but determining whether the dependency case should be terminated or whether continued supervision is necessary. (In re N.O., supra, 31 Cal.App.5th at p. 922.)
The juvenile court's orders are presumed to be correct, and the appellant bears the burden of affirmative showing error. (In re J.F. (2019) 39 Cal.App.5th 70, 79.) Father, who did not cite section 364(c) in his appellate briefs, failed to meet his burden of showing the court's order terminating jurisdiction was erroneous.
DISPOSITION
The order terminating court jurisdiction is affirmed.
WE CONCUR: MOORE, ACTING P. J. DELANEY, J.