Opinion
E069844
07-17-2018
In re T.W., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. P.B., Defendant and Appellant.
Monica Vogelman, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INJ1400067) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Monica Vogelman, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Appellant P.B. (Father) is the father of T.W., who was almost four years old on the date of the challenged orders. Father argues the court abused its discretion when it made the visitation order at the termination of this second dependency because it improperly required the visits to be supervised and delegated visitation authority to T.W.'s mother (Mother).
FACTS AND PROCEDURE
The facts and procedure through the jurisdiction hearing in January 2017 are taken from this court's prior opinion. (In re T.W. (Sept. 14, 2017, E067602) [nonpub. opn.].)
The Previous Dependency—February to October 2014
T.W. was detained from the hospital after being born at 33 weeks gestation because of Mother's untreated high blood pressure and lack of prenatal care. T.W. tested positive for cocaine. Mother was living with, but not married to, Father, who uses a motorized wheelchair after falling off a roof and being struck by a car several years prior to T.W.'s birth. Father collected disability payments and Mother did not work. They lived together in a hotel room. Mother later reported that Father had been controlling and violent during their relationship, and he repeatedly abused her both verbally and physically. Father was not present for T.W.'s birth and did not sign the birth certificate. When interviewed, he did not seem concerned that T.W. had tested positive for cocaine. Father had an extensive record of drug and other offenses, including a 1998 conviction for robbery and kidnapping for which he served more than eight years in prison. He also had a 2007 conviction for burglary, and convictions in 2012 to 2014 for prowling on private property, trespassing, intimidating a business operation, disorderly conduct, and battery. Father was known to local police as a transient and aggressive panhandler, with a history of blocking cars into parking spaces with his motorized wheelchair while asking for money and becoming belligerent when the drivers did not give him money.
Mother is not a party in this appeal.
At the jurisdiction and disposition hearing in April 2014, father was offered reunification services. However, father refused to complete his case plan and stated he wanted to visit with T.W. but not reunify. Father attended about half of his twice-weekly supervised visits with T.W. He often attended with his adult daughter, Patricia. Father had trouble safely parenting T.W. during the visits, for example trying to feed the infant chips and soda, not checking her diaper regularly, and having difficulty changing her diaper. The social worker believed Father could benefit from the parenting class that he had declined to attend, and recommended "[d]ue to [father's] refusal for services, [DPSS] can only limit his interactions with [T.W.] in order to keep her safe."
At the six-month review hearing in October 2014, the court terminated the dependency, granted Mother sole physical and legal custody, and granted Father reasonable visitation supervised by Mother or an agreed-upon third party.
The Current Dependency—2016 to 2018
Two years later, on November 9, 2016, DPSS filed a petition under Welfare and Institutions Code section 300, alleging under subdivision (b) (failure to protect), that Mother suffered from a mental illness, including hallucinations and paranoid and bizarre behaviors, Father failed to provide for T.W. and had a history of substance abuse, and both parents failed to benefit from the services offered in the previous dependency. DPSS also alleged under subdivision (g) (no provision for support), that Father failed to provide care and support for T.W. On November 7, deputies were called to Mother's apartment because she was heard to be screaming. Mother was placed on a "5150 hold," and T.W. was taken into custody. At the detention hearing, the court granted Father supervised visits for one hour, twice a week. However, the record indicates Father missed half or more of the visits, although his adult daughter, Patricia, visited T.W. consistently.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
"The term '5150 hold' derives from section 5150. Section 5150, subdivision (a) applies when a person is a danger to him- or herself or is gravely disabled because of a mental health disorder. Certain professionals 'may, upon probable cause, take, or cause to be taken, the [endangered] person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention.' (§ 5150, subd. (a).)" (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1343 fn. 3.)
At the contested jurisdiction and disposition hearing held on January 18, 2017, the court denied reunification services to Father under section 361.5, subdivision (b)(12), because he had a violent felony conviction. The court decreased Father's visits to once a month, supervised by DPSS, with DPSS authorized to increase visits to twice a month.
Defendant appealed, arguing the court acted arbitrarily when it reduced his visits with T.W. and refused to allow Patricia to supervise his visits. This court affirmed the trial court's visitation orders. (In re T.W, supra, E067602.)
DPSS filed a status review report on July 3, 2017, in which it recommended T.W. be returned to Mother on family maintenance and Father's visits remain at once a month, supervised by DPSS or its designee. Father was visiting with T.W. regularly and appropriately. At the six-month status review hearing held on July 18, 2017, the court ordered T.W. placed with Mother on family maintenance. The following discussion took place regarding Father's visitation:
"[Father's Counsel]: [Father] is asking for unsupervised visits. He says he and the mother have a good relationship and he doesn't see the need for any more supervised visits. [¶] . . . [¶]
"[The Court:] I'm not going to set a visitation schedule. I figure the parents can work this out on their own. Or do you need something more formal?
"The Mother: We can.
"[Father's Counsel]: Father says they can work it out.
"The Court: [¶] As to the father, I am going to change the visitation suggested. . . . I'll just indicate that the father's visitation may be unsupervised and as agreed upon by the parents. Reasonable visitation as agreed upon by the parents. Okay? So work that out between you two. Just make sure, obviously, the child is safe."
DPSS filed the report for the family maintenance status review hearing on January 4, 2018. DPSS recommended terminating the dependency, granting sole physical custody to mother, and, in a change from the exit orders in 2014, granting joint legal custody to the parents. DPSS recommended Father have "reasonable visitation, to be supervised by the mother, a mutually agreed upon third party, or a professional supervisor, cost to be paid by the father." Father was facing charges for battery in February and June 2017, battery on a peace officer in June 2017, and assault and fighting in a public place in December 2017. Mother reported that Father did not visit with T.W. in July and August, but visited consistently after that. T.W. enjoyed the visits and Mother had no concerns.
The family maintenance review hearing was held on January 18, 2018. Father's counsel asked the court to follow the DPSS recommendation of joint legal custody and sole physical custody to Mother. Counsel then stated, "And he says they can work out the visitation. He agrees, as the report says, reasonable between the parties." Mother's counsel asked for sole legal custody because that is what she had at the end of the prior dependency in 2014, and so Mother would not have to get permission from Father to "engage certain types of services for her child." Minor's counsel joined in that argument. The court agreed, and granted Mother sole legal custody based on the prior orders from 2014 and no change in Father's circumstances since then. The court ordered: "Visitation will be as agreed upon by the parties, supervised by the mother or a mutually agreed-upon third party, and that could include the adult sister who is present in court." Father's counsel objected to the sole legal custody, but not to the visitation. Father then had what appears from the transcript to be a heated exchange with the court, in which he questioned why he would not have joint custody of T.W. and accused the judge of being biased and angry. The court told Father it had already made the ruling, to discuss the matter with his attorney, and to appeal if he disagreed. In response to a question from minor's counsel, the court clarified that the visitation was "supervised reasonable."
This appeal followed.
DISCUSSION
In this appeal, Father does not challenge the grant of sole legal custody to Mother. Rather, Father argues the trial court erred when it entered the visitation order that improperly required his visits to be supervised and delegated his visitation to the parties. DPSS plausibly counters that this court could decline to address the merits of this issue under the doctrines of forfeiture and invited error, given that Father agreed to the very order he now challenges on appeal. (In re S.B. (2004) 32 Cal.4th 1287; In re G.P. (2014) 227 Cal.App.4th 1180.) In the interest of thoroughness, and because Father's contention is easily refuted, we address the merits of Father's appeal.
"If the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court . . . the juvenile court on its own motion, may issue . . . an order determining the custody of, or visitation with, the child." (§ 362.4, subd. (a).) These orders are typically referred to as "'exit orders.'" (In re T.H. (2010) 190 Cal.App.4th 1119, 1122.) A juvenile court's decisions concerning terminating dependency jurisdiction and issuing exit orders is typically reviewed for an abuse of discretion, which means the court's ruling may not be disturbed unless it is " ' " 'arbitrary, capricious, or patently absurd.' " ' " (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) The court's visitation order is none of these.
Father contends the court lacked an adequate basis to require his visitation be supervised because the latest reports indicated the visits between him and T.W. were appropriate and loving, that T.W. enjoyed seeing Father, and Mother had no concerns about visitation. However, Father ignores three important facts. First, Father never participated in reunification services, specifically parenting classes, that might make it safer for the court to include unsupervised visits with T.W. in its exit orders. Father chose during the first dependency to not participate in services, and this resulting deficit in his parenting skills impeded the quality of his visits with the infant T.W. During the second dependency, Father was not offered reunification services because he had previously committed a violent felony. Although T.W. is no longer an infant that can be harmed by dropping her, failing to check her diaper, or feeding her chips and soda, T.W. is still a young child who requires careful and skillful parenting, even during short visits. Second, Mother had previously reported that Father was violent toward her when they were together, and abused her both mentally and physically. Third, during this second dependency in 2017, Father has augmented his violent criminal history with additional charges from three or four discrete incidents in which he is alleged to have committed acts of force (three separate batteries, assault, fighting in public) on others. This is more than enough evidence to show the court did not abuse its discretion when it ordered Father's visits to be supervised.
Father also contends the court improperly delegated its authority when it ordered that Father's "[v]isitation will be as agreed upon by the parties, supervised by the mother or a mutually agreed-upon third party, and that could include the adult sister who is present in court" and clarified that the visitation was "supervised reasonable." Aside from the fact, as discussed ante, that Father explicitly agreed to this exact visitation arrangement at the last two hearings, this order is not an abuse of discretion because it mandates that "reasonable" visits occur. The order leaves the details to Father and Mother to work out, as they had previously done, and as they stated in open court that they preferred to continue after the dependency ended. Further, this order is more permissive than the visitation order at the end of the 2014 dependency, because the court now allows Father's adult daughter to supervise his visits. A juvenile court may delegate its "responsibility to manage the details of visitation, including time, place and manner." (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) This does " 'not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function.' " (Ibid.) Such an infringement occurs when the visitation order delegates "the absolute discretion to determine whether any visitation occurs" at all. (Ibid.) Here, the court ordered Father to have "reasonable supervised" visitation, not visitation at Mother's discretion. This, especially combined with both the history of the parents cooperating in arranging visitation and Father's failure to attend all the visitation that was arranged, convinces us that the court did not err when it granted Father reasonable supervised discretion as agreed upon by the parties.
DISPOSITION
The court's visitation orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.